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The opinion of the court was delivered by
' Porter, J.:
Plaintiff sued to recover for damages to a grain elevator caused by negligence of the defendant in operating its trains. The elevator stood on the right of way of defendant and a freight car got off the track and was pushed through the elevator building. The jury returned a verdict in favor of the plaintiff, and the defendant appeals.
The answer alleged that defendant had leased to the plaintiff, at a yearly rental of $6, a portion of its right of way for the purpose of constructing thereon an elevator; that the lease contained an express provision that the lessee should assume all risk of loss, damage, or destruction to the elevator buildings or contents from causes incident to or arising from the movement of locomotives, trains of cars, misplaced switches, or in any other respect from the operation of the railroad, whether the same resulted from negligence of the railway company or its employees. The district court sustained a demurrer to this portion of the answer, and the defendant claims the ruling was error.
The sole question in the case is whether or not the provision of the lease exempting the railway company from liability is valid. The plaintiff seeks to avoid the effect of the provision on the ground that it is against public policy, and argues that the erection of elevators along its right of way is something which becomes necessary to every railway in order that it may furnish adequate facilities to the public; that if the plaintiff had not made the lease and erected the elevator, the company would have been required to.do so in order to furnish facilities ■ to shippers of grain* The defendant’s contention is that this clause of the lease in no manner relieved the railway company from any public duty; that one of the principal considerations for the license to build and maintain the warehouse on its right of way was the provision exempting the company from such damages; and that the public had and has no interest whatever in the question which of the parties to the lease should be held responsible for such damages.
The question can not be considered a new one. Leases of this character are being made every day by common carriers throughout the country. In 3 Elliott on Railroads, 2d ed., § 1236, it is said:
“But where property is placed on a railway right of way by virtue of a contract in which the owner releases the railroad company from any and all liability on account of fire, and the property is afterwards destroyed by fire negligently set by the railway company the contract is not void and the company can not be held liable.” „
In Hartford Ins. Co. v. Chicago &c. Railway, 175 U. S. 91, 44 L. Ed. 84, the defendant leased a tract of land, being part of its depot grounds, for the purpose of erecting and maintaining a cold-storage warehouse, the lessee paying an annual rent of $5, in advance, and upon the express condition releasing the railway company from all liability or damage by reason of injury to or destruction of any building placed thereon by fire, or from damage done by trains or cars running off the track. The supreme court of the United States said in that case:
“No one had the right to put a warehouse or other building upon the land of the railroad corporation without its consent; and the corporation was under no obligation to the public, or to the partnership, to permit the latter to do so.” (p. 99.)
The court held that the principal consideration in the contract for the license to build and maintain the warehouse on this strip of land was the stipulation exempting the company from liability to the licensee for any such damages, and the public had no interest in the question which of the parties to the contract should be responsible for such damages to property placed on the land of the corporation. The court distinguishes a case of this kind from that where a railroad company transfers its entire property and franchises to another corporation and seeks to relieve itself from the duties imposed upon it by its charter. Another case in point is Griswold v. Ill. Cent. R’y Co., 90 Iowa, 265, 57 N. W. 843. In the opinion it was said:
“Much as the public may have been interested in the convenience of such a place of business, it had no interest as to who should carry the hazard incident to that property being located as it was.” (p. 272.)
It was held, therefore, that a provision in a contract of this character for indemnity is valid.
The only Kansas case at all like this is Railroad Co. v. Blaker, 68 Kan. 244, 75 Pac. 71, where the court without-deciding that the rule referred to in the foregoing authorities should be followed, held that such an exemption “was not a license, however, negligently to set out fires which might burn the elevator and pass over the right of way, destroying other property.” • (p. 248.) There was a similar provision in the lease by which Blaker & Company assumed the risk of destruction by fire of property on the right of way, and the decision merely went so far as to hold that the company would still be liable for damages to other property belonging to the lessee to which the fire spread after it had started in the leased premises. The question here was not expressly decided.
No case has been cited and we have found none where similar exemptions have been declared in contravention of public policy, and we are constrained to adopt the reasoning of the supreme court of the United States and the Iowa court, and vto hold that the provision in this lease can not be said to be void on the ground of public policy.
Section 6998 of the General Statutes of 1909, making railroads in this state liable for all damages to personal property arising from any neglect on the part of the company is invoked by the plaintiff. That section would apply were it not for the stipulation in the lease exempting the company from such liability, and the only thing we have to determine is whether the contract exempting the company is contrary to public policy. The cases of K. P. Rly. Co. v. Peavey, 29 Kan. 169, Railway Co. v. Fronk, 74 Kan. 519, 87 Pac. 698, and Sewell v. Railway Co., 78 Kan. 16, 96 Pac. 1007, are not in point, for the reason that they all involved liability for injuries to employees, and it was held that because of the interest which the state has in the lives, health and safety of its citizens, the state may intervene in such contracts in the interest of the public welfare, and that contracts with an employee exempting the company from liability for injuries resulting from the neglect of the company’s agents is void as against public policy; so that after all we have only the original question involved in this case: Does the clause of exemption in this contract contravene public policy ?
Our conclusion is that it does not, and therefore the judgment will be reversed and the cause remanded with directions to overrule the demurrer and to enter judgment for the defendant.
Johnston, C. J., dissenting.
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The opinion of the court was delivered by
Johnston, C. J.:
On September 22, 1918, an amended information was filed in the district court of Wyandotte county charging that:
“Frederick H. Meyer, doing business under the firm, name and style of The Meyer Sanitary Milk Company, at said county of Wyandotte, State of Kansas, within the jurisdiction of this court, on or about the 25th day of June, 1918, being then and there engaged in the delivery and sale of milk, did unlawfully and wil-fully keep for sale, offer for sale, sell, or cause to be sold a quantity of milk, the exact amount of which is unknown, to one J. A. Bukaty, which milk was then and there adulterated in this, to-wit: that said milk contained less than 3.25 per cent of milk fat and less than 8.50 per cent of solids not fat, in violation of the rules and regulations of the Kansas State Board of Health, and contrary to the statute in such case made and provided.”
Meyer moved to quash the information on the ground that it failed to state a public offense, and the motion being sustained the state appeals.
The prosecution evidently undertook to charge a violation of the drugs and foods act, and the question presented here is, Does the information state an offense under the provisions of that act? In section 3 of chapter 266 of the Laws of 1907 as amended by section 1 of chapter 184 of the Laws of 1909 it is provided :
“That the State Board of Health is authorized and directed to make and publish uniform rules and regulations, not in conflict with the laws of this state, for carrying out the provisions of this act, which rules and regulations shall be published in the official state paper, which rules and regulations, among others, shall provide for the collection and examination of specimens of foods and drugs manufactured, kept for sale, offered for sale or sold in the state of Kansas; and said Board of Health is further authorized and empowered to make, define, adopt and publish standards of quality, purity and strength for foods and drugs. Any person who shall violate any of the rules and regulations so made and published in the official state paper- shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding fifty dollars or imprisonment in the county jail not more than six months, or both, in the discretion of the court.” (Gen. Stat. 1909, § 3077.)
One of the regulations adopted by the state board of health under the authority conferred by the legislature is that:
“When any article of food, liquor, drug or drink falls below the standards of quality, purity or strength which have been adopted by the United States Department of Agriculture or the Kansas State Board of Health, it shall be regarded as misbranded or adulterated within the meaning of the Kansas Food and Drugs Law.” (Kansas State Board of Health Regulation No. 30.)
The board also adopted regulation No. 35, subdivision B of which provides:
“Milk is the fresh, clean, lacteal secretion obtained by the complete milking of one or more healthy cows, properly fed and kept, excluding that obtained fifteen days before and five days after calving, and contains not less than eight and one-half (8.5) per cent of solids not fat, and not less than three and one-quarter (3.25) per cent of milk fat, and contains no preservatives, added water, or other foreign substance.”
This provision, it will be observed, is quite similar to the definition of milk prescribed by the legislature in the act providing for the appointment of a dairy commissioner and for the supervision of dairies and butter, cheese and ice-cream factories. (Gen. Stat. 1909, § 8747.) No question is raised as to the power of the legislature to authorize the state board of health to adopt and publish standards as to the quality, purity and strength of foods and to make rules and regulations for carrying out this and other provisions of the act. It is not contended that there is a lack of power in the legislature to prescribe penalties for the violation of such regulations as the board is authorized by the legislature to make. There is no contention that the board has authority to create an offense or fo exercise legislative power by making the violation of one of its regulations a public offense. The question here is, Does the information charge that the defendant has done that which the legislature has declared to be an offense and for which it has prescribed a penalty? It is contended that the information is defective in that it fails to specify the manner in which the milk has been adulterated by the defendant, and it is insisted that to state an offense it must charge the doing of one or more of the specific acts prescribed in the section defining adulteration. (Gen. Stat. 1909, § 3081.) The act, as will be observed, contains many provisions and makes the violation of each of a number of them a misdemeanor for which a penalty is prescribed. Among them it makes the manufacture of foods or drugs that are adulterated or misbranded or which contain any deleterious substance an offense. It also provides that any one who sells, keeps or offers for sale any adulterated or misbranded food, drug or liquor shall be guilty of a misdemeanor. In section 3081 of the General Statutes of 1909, to which reference has been made, it is provided, in effect, that foods shall be deemed to be adulterated if any substance has been added to or abstracted from them, or shall be mixed with or substituted for them, or where there is any treatment of foods which would conceal damage or inferiority, or if it consist of a filthy, decomposed, tainted or putrid animal or vegetable substance, or any portion of an animal unfit for food, or if it is the product of a diseased animal or one which died otherwise than by slaughter. The next section defines the term “mis-branding” as applied to articles of foods and drugs.
In a prosecution for the violation of the provisions which prohibit and punish adulteration an allegation of the means of adulteration employed by the defendant would be necessary, but this prosecution, as we have seen, is not brought under any of these provisions, but is brought on the one which provides that the state board of health shall make rules and regulations fixing standards for foods and drugs, and which makes the violation of such rules and regulations a misdemeanor. It is true that the word “adulterated” is used in one part of the information, but it is a superfluous term and was only used to characterize the milk which it is alleged was not up to the standard fixed by the state board of health. The specific charge made against the defendant is that he kept, offered for sale and sold milk in violation of the rule and regulation made by the state board of health, fixing the standard for milk. It has been suggested that the section in question falls short of making the keeping and offering for sale and the selling of foods which are below the standard an offense, that'the fixing, and publishing of standards is not a rule or regulation, and that only a violation of the rules and regulations is declared to be an offense. Although the section is somewhat awkwardly phrased there can be little doubt of the legislative purpose in enacting it. It first confers general authority on the board to make rules and regulations, and these are required.to be published in the official state paper. It is then enacted that, among others, the rules and regulations shall provide for two things; First, the collection and examination, of specimens of foods and drugs; and, second, the board is authorized and empowered to make, define, adopt and publish standards of quality, purity and strength of foods and drugs. There is a semicolon at the end of the clause relating to the collection and examination of specimens, but the succeeding clause is a continuation of the subject and is but the enumeration of another regulation that the board is authorized to make. It is the same as if it had been said that in making rules and regulations the board, among other things, shall provide for the collection and examination of specimens of foods and drugs and shall make, define, adopt and publish standards of quality, purity and strength of foods and drugs. The action of the board in fixing and publishing a standard is the making of a rule and regulation for the violation of which a penalty is prescribed. The information does not, of course, state that the milk has been adulterated by adding something to it or substituting something for it, but briefly alleges that the milk which the defendant kept and sold contained less than a certain per cent of milk fat and less than a certain per cent of solids not fat, and this, as we have seen, is a violation of the adopted and published rule made by the state board of health.
The order of the district court sustaining the motion to quash will, therefore, be reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Mason, J.:
Joseph G. Norman brought replevin against L. H. Toliver before a justice of the peace. The sheriff took possession of the property, under a writ, and delivered it to the plaintiff, who upon the return day dismissed the action. The justice then continued the case until the next day. The plaintiff seems to have made no further appearance. At the time set an order was made purporting to substitute the Home Savings Bank as defendant, upon a showing that Toliver was interested only as its agent. The case was afterwards tried in the absence of the plaintiff and a judgment was rendered against him. He undertook to appeal to the district court by giving a notice of appeal such as is employed where a review of a judgment of the district court is sought. The decision of the justice of the peace was reversed, and the bank appeals from that ruling.
The bank contends that the attempted appeal from the judgment of the justice of the peace was a nullity — ■ that under the present code the only way in which an appeal can be taken from a judgment rendered by a justice of the peace is by the giving of a bond as provided in section 121 of the justice’s civil code. Upon the original hearing of this case a decision was made against this contention, but in view of the doubts entertained on the point a rehearing was ordered, upon which the question is now submitted.
Prior to the adoption of the present code a party against whom a judgment was rendered by a justice of the peace had two methods by which he could invoke the jurisdiction of the district court. Under the provisions of the justice’s code he could take what was styled an “appeal,” by giving a bond in double the amount of the judgment. This proceeding had nothing to do with any question of the correctness of the justice’s rulings or decision. . By giving the bond the appellant as a matter of right procured the immediate vacation of the judgment against him, notwithstanding it may have been rendered in exact accordance with law! Or by virtue of provisions of the civil code, which are now repealed, he could file in the district court a petition in. error, and have an examination into the correctness of the decision, the judgment being vacated or modified only if error was found to have been committed in its rendition. The following are the pro visions of the new code by which the present practice must be determined:
“A judgment rendered or final order made by a probate court, a justice of the peace or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court.” (Civ. Code, § 564.)
“All reviews of the judgments and orders of inferior courts shall be by appeal. Petitions in error are abolished.” (Civ. Code, § 567.)
“Appeals from judgments of justices of the peace shall be taken in the manner provided in the act regulating the jurisdiction and procedure before justices of the peace in civil cases.” (Civ. Code, § 568.)
“Appeals to courts other than the supreme court shall be taken and proceedings therein had in the same manner as is herein provided for appeals to the supreme court, except where special provision with reference to such appeals is made by statute.” (Civ. Code, § 571.)
There is some difficulty in reconciling these provisions. The new code ordinarily uses the word “appeal” to describe a process by which a superior tribunal reviews the proceedings of an inferior one, to determine whether error has been committed. In the justice’s code the same word is applied to a method by which a litigant can by giving a bond procure the immediate vacation of a judgment against him, however rightful its rendition may have been. The first section above quoted seems to contemplate an appeal from a justice’s judgment in the former sense — implying a review of the proceedings and an investigation of their correctness. It declares that such a judgment may be “reversed, vacated or modified by the district court,” the apparent meaning being that the judgment shall be reversed or modified if found to be erroneous. The “appeal” provided in the justice’s code does not afford an opportunity for the reversal or modification of the judgment. The giving of the bond at once and of itself vacates the judgment absolutely, leaving the case to be tried as though it had originally been brought in the district court, which has nothing to do with the justice’s judgment.
On the other hand, the language of section 568, that “appeals from judgments of justices of the peace shall be taken in the manner provided” in the justice’s code, strongly suggests that only one method of appeal from the justice’s judgment is contemplated. In that view the portion of section 571 which extends to other courts the procedure for appeals to the supreme court does not apply to judgments rendered in justice court, since that case is one for which special provision is made. This interpretation is strengthened by the fact that no method is provided by which to preserve for review the questions passed upon by a justice of the peace. The procedure of the district court can not be made ,to apply, for want of a stenographer, and the sections of the justice’s code relating to bills of exceptions have been repealed by implication. (Kroenert v. Sawyer, 87 Kan. 374, 124 Pac. 418.) Upon full consideration the court is of the opinion that the sections quoted must be construed not only as eliminating the petition in error of the earlier practice, but also as doing away entirely with the right to have the rulings of a justice of the peace on questions of law reviewed in the district court. The remedy by giving an appeal bond is not a complete substitute for that formerly provided by the petition in error, because it is available only to a litigant who is able to give security in double the amount of the judgment against him, which in at least one city court may be as high as $1000. Moreover, the giving of a bond would in some cases amount to a waiver of the error complained of; for instance, the validity of an attachment of property claimed to be exempt would be rendered immaterial by an undertaking to pay the judgment. It seems impracticable, however, to interpret the statute as affording the relief formerly given by proceedings in error, and if substantial injustice re- suits for want of it the remedy must be sought in additional legislation.
The judgment is reversed with directions to dismiss the appeal.
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Per Curiam:
This action was commenced in the district court of Shawnee county, Kansas, April 1, 1918, to enjoin the attorney-general and the one hundred five county attorneys of the state of Kansas from enforcing the provisions of chapter 180 of the Laws of 1913, commonly called the “Pure Shoe Law.” A temporary injunction against all the defendants was issued. The defendants filed a demurrer to the petition. This demurrer was sustained. Judgment was rendered in favor of the defendants, but the temporary injunction was continued in force until the appeal should be heard in this court. The plaintiffs appeal.
By House bill No. 271, passed by the legislature of this state, now in session, approved by the governor February 11, 1915, published February 15, 1915, and taking effect from and after its publication, chapter 180 of the Laws of 1913 was repealed. The repeal of this law renders this litigation practically useless. In The State, ex rel., v. Insurance Co., 88 Kan. 9, 127 Pac. 761, this court said:
“The court is not required to give judgments that are not effective. (Stebbins v. Telegraph Co., 69 Kan. 845, 76 Pac. 1130.) When questions become moot, judicial action will cease.” (p. 10; Ziegler v. Hyle, 45 Kan. 226, 25 Pac. 568; Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62; Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104; Kansas City v. The State, 66 Kan. 779, 71 Pac. 1127; Waters v. Garvin, 67 Kan. 855, 73 Pac. 902; Jenal v. Felber, 77 Kan. 771, 95 Pac. 403; Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235; City of Ottawa v. Barnes, 87 Kan. 768, 125 Pac. 14; Hurd v. Beck, 88 Kan. 11, 45 Pac. 92; The State, ex rel., v. Insurance Co., 88 Kan. 204, 127 Pac. 762; Anderson v. Cloud County, 90 Kan. 15, 17, 132 Pac. 996; The State, ex rel., v. Board of Health, 90 Kan. 18, 51 Pac. 1101; The State, ex rel., v. Railway Co., 90 Kan. 20, 56 Pac. 755; Teterick v. Parsons, 90 Kan. 21, 64 Pac. 1028.)
There is nothing left in the case, except costs. Following the rule declared in the cases above cited, the appeal in this action is dismissed.
Dawson, J., not sitting.
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The opinion of the court was delivered by
Mason, J.:
The St. Joseph & Grand Island Railway Company built a fence across Hartford street, in Seneca; a city of the second class, at a point where it claims the street has been vacated. The city brought an action for its removal, and obtained a judgment, from which the company appeals.
The railroad tracks run along Baltimore street, which lies practically east and west, and is crossed by Hartford street at a right angle. The fence is .built along the south line of Baltimore street, where it crosses Hartford street. The company’s depot occupies nearly the whole width of Hartford street on the north line of Baltimore street, leaving only a narrow passageway on the east side. Traffic by conveyances is not sought along Hartford street at this point, and the decree provides that it shall not be construed as requiring the removal of any of the defendant’s tracks or buildings, or as authorizing the use of the intersection of the two streets named by horse or motor vehicles. But the city maintains ■ that foot passengers are entitled to use the street, and are inconvenienced by the fence. The railway company contends that the fence is really a protection to the public, as the street can here be used even by pedestrians only at a considerable risk. Evidence was introduced bearing upon the degree of practical inconvenience caused by the fence, -but we think the decision must turn solely on the question whether the street has been vacated. If so, the fence may be maintained by the company, which owns the abutting property. If not, the city may require its removal as an obstruction to a street.
The four blocks abutting on Baltimore and Hartford streets where they intersect are thus numbered: That lying to the northwest is 78, to the northeast 79, to the southeast 90, to the southwest 91. An alley runs through the middle of each block from east to west. The defendant owns all the lots in these blocks bordering on Hartford street. The right to maintain its track on Baltimore street is derived from a grant made in 1870 to its predecessor, the St. Joseph & Denver City Railroad Company, authorizing it to construct its railroad on any street where it was then located. In 1872 a city ordinance was adopted, the effect of which is the vital matter in controversy, and which reads as follows:
“Ordinance No. 42.
“In relation to vacating certain streets and alleys for the St. Joe & Denver City Railroad building purposes. “Be it orclainecl by the Mayor and Councilmen of the City of Seneca:
“Section 1. That the St. Joseph & Denver City Railroad Company be and are hereby authorized to use for railroad purposes that part of Hartford Street running south from the alleys between blocks seventy-eight (78) and seventy-nine (79) to the north line of block No. ninety (90) and ninety-one (91), also the alleys in block ninety-one (91) all in the City of Seneca, Nemaha County, Kansas.”
The defendant maintains with much plausibility that although no form of the word “vacate” is used in the body of the ordinance, the title indicates clearly that its purpose was to effect a vacation of the part of the street described. The title showed that the “railroad purposes” referred to in the body were “building purposes.” One object manifestly was to allow the depot to be located in part in the street. A city, however, can not without legislative authority permit a railroad sation to be built in a public street. (Note, 25 L. R. A., n. s., 404; 28 Cyc. 853, 873.) The Kansas statute does not appear to confer such an authority upon cities of the second class, unless it may be implied from the power granted to regulate depots and depot grounds, or to provide for the passage of railways through the streets (Gen. Stat. 1909, § 1409), and such an interpretation is not in accordance with the rule of strict construction generally applied in similar cases (27 A. & E. Encycl. of L. 170, 178). Apparently the only way in which a city can authorize a railway depot to be built on land occupied by a street is by vacating the street. And specific authority to construct such building in part upon a street might well be construed as vacating the part of the street to be so occupied. Such was the effect given to the ordinance involved in City of Leavenworth v. Douglass, 59 Kan. 416, 53 Pac. 123. The language of the ordinance is not set out in the opinion in that case; but the record shows that neither in the title nor in the body of the ordinance was the word “vacate” or any equivalent used. By its terms it designated and set apart a site for a depot about to be constructed, and the description included “that part of Delaware street.lying between the east line of Main street and the west line of Water street.” It gave the railway company the right to construct the depot upon and across certain parts of streets. A requirement was made that the company should obtain title to a designated strip of ground and dedicate it to public use, obviously as a substitute for the parts of streets taken. Injunction was sought by an owner of abutting property against the completion of the depot on the ground that it obstructed his access to the street, and in affirming the judgment of the district court denying relief this court said: “The difficulty with this contention is that the ground so occupied is not a street. The ordinance locating and authorizing the construction of the union depot and providing for the dedication of a new street, is in effect a vacation of that part of Delaware street which is occupied by the union depot,” and the; statute permitting cities to vacate streets was cited as the authority for the ordinance, (p. 420.)
On the other hand, the ordinance here involved is so indefinite in its language that great difficulty is found in giving it any force whatever. It does not in terms vacate the part of the street described, nor does it fix the location of a depot or other building, or set apart any public ground for that purpose. It purports to authorize the railroad company to use for “railroad purposes” a part of Hartford street, including the intersection with Baltimore street. It may have a field of operation in permitting the construction of additional tracks. If it vacates the part of Hartford street which it describes, it also vacates a part of Baltimore street, and vests full title thereto in the railway company as the abutting owner. Upon full consideration we are of the opinion that it is not to be given effect as an ordinance vacating the street between the limits indicated.
The defendant insists that even if the purpose to vacate the street does not sufficiently appear from the language of the ordinance, the city should be estopped from denying it that effect, because the company, in reliance upon such an understanding of it, located its station and yard tracks on the assumption that the street was vacated, and has so maintained them for more than forty years. So far as affects the ground upon which the depot stands this principle may perhaps apply. But it does not conclusively appear from the evidence that any other part of the street has been occupied in such a way as to be absolutely inconsistent with the retention of any right of passage by the public, and the finding of the court must be deemed to the contrary, if that is necessary to uphold the judgment.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a Are insurance policy. Special findings of fact and-a general verdict favorable to the plaintiff were returned, judgment was entered accordingly, and the defendant appeals.
The defendant writes fire insurance upon the assessment plan and has its home office in Olathe. The plaintiff applied to the defendant’s solicitor in Blue Mound for insurance, signed an application, which was transmitted to the defendant by the solicitor, and in due time.received his policy. A portion of the property which was insured was destroyed by fire, and upon refusal of the defendant to pay the loss, suit was instituted by the filing of a petition in the form usual in such cases. The answer was that the solicitor Ayho took.the application and transmitted it to the defendant was not the defendant’s agent, and that the defendant issued the policy relying upon the truthfulness of certain statements material to the' risk, made by the plaintiff in answer to questions contained in the application, which statements were untrue. The reply controverted the allegations of the answer and stated that the plaintiff was guilty of no misrepresentation or concealment of fact but truthfully answered all the questions contained in the application, to the defendant’s solicitor.
The proof was abundant that the solicitor was the agent of the defendant for the performance of the usual functions of an agent to solicit applications.
'There was direct and positive proof that the defendant answered the questions contained in the application truthfully. The questions were propounded to him by the solicitor. The solicitor set down answers, not as given by the plaintiff but in his own way, and the plaintiff signed the application without knowledge of what the solicitor had written. The defendant de bates the proof at great length, but it was ample to sustain the special findings of the jury and the general verdict, to the effect stated.
Perhaps the most important question and answer in the application were the following:
“2. What buildings approach within forty feet? What is the distance? What are they? 2. None.”
A wash house stood within the prohibited distance, containing a butcher’s cauldron which was used on wash days and some other occasions. The insured building was burned by fire communicated from' this wash house. In response to a question the plaintiff testified he knew the answer “none” was written upon the application. Subsequently the plaintiff explained his statement and meaning and, as the result shows, to the full satisfaction of the jury. It is argued that the plaintiff was conclusively bound by his first response. It requires no citation of authorities to show that the argument is unsound, and that it was the province and duty of the jury to weigh all the statements of the witness and from his entire testimony to determine its meaning and force.
The defendánt argues that a conspiracy existed between the plaintiff and the solicitor to obtain forbidden insurance, and consequently that the policy was void. There was evidence that the solicitor wrote a letter to the defendant concerning the wash house and its location, which he transmitted to the defendant in the same envelope that carried the application. The conspiracy theory is refuted by the special findings of the jury, among which are the following relating to the question and answer printed above:
“4. Did the defendant at its home office prior to the time that it issued the policy that is sued upon in this suit have any knowledge about the wash house standing within 12 or 15 feet of the insured building which was destroyed, other than that contained in the written application in evidence? A. Yes.
“8. Did plaintiff Broady know what answer Stephen Balyeat had written to question 2 of application, re lating to location of buildings, at the time he, Broady, signed the application. A. No.”
It is said that oral evidence by the plaintiff and other witnesses giving the facts relating to the preparation of the application was incompetent as overthrowing a written contract. This court has decided numerous times that such evidence is admissible.
Certain evidence which the defendant claims should have been admitted was rejected. In one instance the information sought was obtained by an answer to a later question. In another instance the offered evidence related to the subject of waiver urged against the defendant, which was not submitted to the jury. Much of the rejected evidence called for pure conclusions of witnesses regarding matters for the determination of the jury. None of the rejected evidence was presented at the hearing on the motion for a new trial in the manner required by statute (Civ. Code, § 307), and consequently the rulings complained of are not properly subject to review.
The instructions are criticized as not presenting the specific idea of an agreement between the plaintiff and the solicitor to return false answers to the questions contained in the application. The subjects of false representation of facts and concealment of facts constituted the chief burden of the instructions which were ample for the guidance of the jury. A portion of an instruction is criticized as assuming that the solicitor was the agent of the defendant. The question of the solicitor’s agency was, however, clearly and properly submitted to the jury in other instructions.
The defendant argues that it is not bound by the policy because of certain by-laws under which the application would have been rejected if the company had not been deceived by the application. The court knows of no reason for not applying to this transaction principles of law which it has announced time and again in deciding similar controversies.
Although the plaintiff became a member of the com pany and subject to its by-laws by virtue of the policy issued to him, he contracted with the company for insurance. He procured the insurance on the basis of the application, which contained none of the rules or by-laws of the company. The solicitor who took the application was the agent of the company for that purpose and not the plaintiff’s agent. The company was charged with knowledge of all the facts known to its agent, and the interpretation and application of the bylaws, not yet binding upon the plaintiff, relating to the character of risk which would be accepted, was a matter for the company, no question of charter power or statutory regulation being involved. When the application was accepted and the policy was issued and delivered to the plaintiff he had the right to rely upon it so long as he did not act in bad faith. There was proof that even the defendant’s own officers were satisfied the plaintiff acted in entire good faith. Under these circumstances the defendant can not repudiate the policy after loss has occurred.
Other claims of error, advanced in the defendant’s brief need not be specifically referred to.
The defendant’s only substantial grievance is that the jury accepted the testimony of the plaintiff’s witnesses respecting the preparation of the application, a matter which this court is powerless to remedy.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought for the purpose of perpetually enjoining the enforcment of a judgment claimed to be unjust and void. The facts necessary to be considered in this case are substantially as follows: On the 10th of July 1873, plaintiffs in error, Chambers Bros. & 0°., commenced an action against defendant in error in the district court of Leavenworth county. Summons was duly issued therein, and delivered to the sheriff of that county for service. The sheriff afterward returned the summons with the following indorsements thereon, to-wit:
“I received this summons on the 10th of July 1873 at 3 o’clock P.M.; and I served the same summons in my county of Leavenworth, Kansas, on the within-named defendant, The King Wrought-Iron Bridge Manufactory • and Iron Works of Topeka, Kansas, by delivering to Walter F. Johnson, the clerk and secretary of said defendant, personally, a copy of the written summons on this 10th of July 1873. I so served said summons as aforesaid upon said clerk or secretary, being unable to find, in the county of Leavenworth, Kansas, the president, chairman of the board of directors or trustees, or other chief officer of said defendant. T. L., Sheriff&c.
The statute provides that “A summons against a corpora tion may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent,” etc. (Civil code, § 68.) The only objection to said service is, that said Walter F. Johnson was not clerk, or secretary, or any other officer, or agent, of the defendant, upon whom service of summons could be legally made. The defendant, which we shall designate as the “bridge company,” made no appearance in the case. Afterward, and on September 1st 1873, the district court of Leavenworth county rendered a judgment in favor of the plaintiff and against the defendant, the bridge company, for the sum of $1,189.68. Another objection to this judgment is, that there was nothing due from the defendant to the plaintiff. Afterward, an execution was issued on said judgment by the clerk of the district court .of Leavenworth county, and placed in the hands of the sheriff of Shawnee county for collection. Said sheriff immediately caused said execution to be docketed in the office of the clerk of the district court of Shawnee county, and then by virtue thereof levied on the property of the bridge company, greatly to its injury. The bridge company then commenced this action in the district court of Shawnee county against the sheriff of said Shawnee county, and against said Chambers Bros. & Co., the parties who obtained said judgment, to perpetually enjoin the enforcement of said judgment. A trial was had in the case in the district court of Shawnee county, and the court found in favor of the bridge company, and against Chambers Bros. & Co., and rendered a judgment perpetually enjoining the enforcement of said judgment. It was shown on the trial of the case that the present defendant in error, the bridge company, was a corporation at the time of said service of summons, doing business in the city of Topeka, Shawnee county; that said Walter F. Johnson was a book-keeper in their employ; that he was not the secretary, or clerk of the corporation, or any general agent thereof; in fact, that he held no position in the company, or from the company, except that he merely kept books, under the secretary, as aforesaid; that he went to the city of Leavenworth, in Leavenworth county, to attend court as a witness in a bankruptcy case; that while there he was served with summons in said ease as aforesaid, and when he returned from Leavenworth to Topeka, which was on the same day that he was summoned, he immediately told the officers of the bridge company that he had been so served with summons. It also appears that the debt claimed to be due to Chambers Bros. & Co., on which said judgment was rendered, was not the debt of the bridge company which is a party in this case, but it was a debt due from an entirely different corporation, a bridge company doing business at the city of Iola, Allen county. The said judgment and said execution, with all the proceedings connected therewith, appear to be regular and valid upon their face. With this statement of the facts we shall now proceed to decide the questions of law involved in the case.
I. An action may be maintained to perpetually enjoin the enforcement of a void judgment, where such judgment appears to be valid and regular upon its face; and this is especially true where the judgment is also unjust. Caruthers v. Hartsfield, 3 Yerger, 366; Ridgeway v. The Bank of Tennessee, 11 Humphrey, 523; Crafts v. Dexter, 8 Ala. 767. There are decisions apparently adverse to the above proposition; but generally such decisions are in cases which differ from this. They are generally in cases where the judgment is not void, but only voidable, or where it would be inequitable for the courts to interfere, or where a party has negligently slept upon his rights, or has some other plain and adequate remedy, or where the judgment itself is incurably void upon its face.
II. Such an action may be maintained against any person who attempts to put such judgment in force, and who has apparent authority for so doing.
III. The action may be maintained in any county in which an attempt is made (to the injury of the party seeking the relief) to put such judgment in force, although such judgment may have been rendered in another county.
IY. A judgment rendered against any person, where the court has no jurisdiction of such person, is void.
Y. A court can obtain jurisdiction of a person for the purpose of rendering a judgment against him, only by the service of process upon him (actually or constructively,) or by his voluntary appearance in the case.
YI. A service of a summons on a person who keeps books for a corporation, but who is not the secretary, or the clerk of the corporation, or any other officer or agent of the corporation upon whom a legal service may be made, is not a valid service upon the corporation. It is true, a book-keeper is in one sense a clerk. Any person who performs clerical duties is in one sense a clerk. But the service of a summons on a corporation cannot be made on every person who may in some remote sense be styled a clerk of the corporation. It could not be made on a deputy or under-clerk. It must be made on the clerk, the principal clerk of the corporation, if made on a clerk at all. It must be made upon the person who holds the office of clerk, or secretary, as the case may be. In proper cases a service on the person who holds the office of clerk or secretary of the corporation would.be a good service, although such person might not in fact perform any of the clerical duties for the corporation. For instance, if the service had been made on Haywood, the secretary of the corporation in this case, instead of on Johnson, a book-keeper, the service would have been a valid service, whether Haywood performs any of the clerical duties or not. As the service was void however, everything following the service was also void.
YII. A sheriff’s return with re.spect to service of original process may be impeached so far as it states facts upon which jurisdiction depends, where the facts stated do not come within the personal knowledge of the sheriff, but must be ascertained by him from inquiry. (Bond v. Wilson, 8 Kas. 228; Starkweather v. Morgan, 15 Kas. 274.)
The judgment of the court below enjoining said judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is a proceeding to review the action of the district court of Shawnee county in vacating an attachment. The principal ground in the affidavit for the attachment was the disposal of property with intent to hinder, delay, and defraud creditors. The truth of this was denied. Upon the affidavits presented there can be no reasonable doubts as to the correctness of the court’s ruling in so far as the question of an actual intent to hinder and delay creditors is concerned. While property was disposed of, the proceeds thereof were, with the exception of an inconsiderable sum, all used in the payment of debts. Of the $650 realized from the sale and mortgage, all that plaintiffs’ counsel claim is, “that at least fifteen dollars of the money thus realized does not appear to have reached defendant’s creditors.” The payment of the residue to creditors is clearly traced. There was therefore a preference, rather than a delay or a defrauding of creditors. Indeed, we scarcely think from the argument of the learned counsel for plaintiffs that , they expect this court to find from the testimony that there was an actual intent on the part of the defendant to delay or defraud creditors. It is fraud in law, rather thari fraud in fact, to which they point, and upon which they rest their case. “The effect of the chattel mortgage was to hinder and delay creditors. The law will conclusively presume that he intended the natural consequences of his act. Therefore he intended to hinder and delay his creditors, and this supports the attachment.” The proposition is too broad. The natural effect of an assignment for the benefit of creditors is hindrance and delay. Yet it is not therefore void, and the property subject to attachment. Case v. Ingersoll, 7 Kas. 367; Kayser v. Heavenrich, 5 Kas. 338. So that the mere fact that the tendency of the act is to work a hindrance or delay, is not absolutely decisive. The right of a debtor to prefer a creditor, and to appropriate a portion or all his property in good faith to the payment of a single debt, cannot be denied, unless there be, as in the U. S. Bankrupt Act, some special statutory restrictions. So also, the right of a debtor for the same purpose, and in like good faith, to burden his property by mortgage, or to use it by pledge or otherwise in raising money, cannot be questioned. And these propositions are all that are necessary to dispose of this case. The property sold was sold at a fair valuation — the same valuation afterward placed upon it by the appraisers when taken on the attachment. It does not- appear that the mortgage was upon an unreasonably large amount of property, or was in any of its provisions out of the ordinary course of business, or unreasonably exacting or oppressive. And the proceeds of both sale and mortgage were appropriated as heretofore indicated.
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All the Justices concurring.
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The opinion of the court was delivered by
Johnston, C. J.:
This action involves the interpretation of a will and the ownership and partition of a quarter section of land described in the will. George Atkinson, who owned the land, died in 1904, and left surviving him his widow, one son and six daughters. In the will which he made he devised a life estate to his widow, and further provided that after her death:
“I will and desire that the said property shall revert to my beloved son Artie Atkinson, provided that in such event he shall pay to each of his sisters, Annie Hendrickson, Nancy Hooks, Ida Mastellar, Sarah Jackson, Lydia Wilson and Daisy Teach, the sum of two hundred dollars ($200.00). Said two hundred dollars to be paid in yearly payments of sixty-six and two-thirds dollars ($66.%) to each sister as above enumerated. The first payment to be made on the first day of September, following the first day of April after the death of my wife, Ellen Atkinson.”
Artie Atkinson, the son of the testator, died in 1912, and left surviving him Sarah Atkinson, his wife, and two children. This action was brought by the daughters of the testator against the heirs of Artie Atkinson to recover the land and partition the same among the plaintiffs. The defendants answered claiming to be the owners of the land subject to the life estate devised to the widow of the testator and to the payment of certain sums of money which the will directed should be paid to the plaintiffs. A reply to the answer was filed, which was subsequently withdrawn and a demurrer to the answer filed. The demurrer was overruled and, the plaintiffs failing to plead further, a trial was had which resulted in a finding in favor of the defendants and a judgment that the plaintiffs had no interest or title in the land.
The purpose of the testator is reasonably manifest. Evidently he undertook to make a complete disposition of his entire estate. A life estate in his land was given to his wife, and then he proceeded to make a disposition of the fee. While some unusual words were employed by the scrivener, who was evidently without legal training, it is reasonably clear that it was the intention of the testator to give the fee to his son, Artie, charged with the payment of the legacies given to the daughters of the testator. (Donohue v. Donohue, 54 Kan. 136, 37 Pac. 998.) Nothing in the will indicates a purpose to give the fee of the land to either the widow or the daughters, nor that the daughters should have more than the sums of money which the son was directed to pay to them. All the inferences derivable from the language in the will proceed on the theory that the entire estate is given to the members of the testator’s family, and under such circumstances the presumption is that he intended to dispose of his entire estate and not to die intestate as to any of his property. (Singer v. Taylor, 90 Kan. 285, 133 Pac. 841; Twist v. Twist, 91 Kan. 803, 139 Pac. 377.) In giving the land to his son the testator used the expression, “I will and desire that the said property shall revert to my beloved son,” while in the earlier provision the words, “give, devise and bequeath,” were employed. The word “will” is mandatory, comprehensive and dis-positive in its nature, is broad enough to dispose of both real and personal property, and is as effective as the expression, “devise and bequeath.” The word “desire,” although frequently used as a precatory term, is sometimes used as a direction or command. (Harrison v. Langfitt, 158 Iowa, 479, 139 N. W. 1076; Brasher et al. v. Marsh et al., 15 Ohio St. 103; Wood v. Camden Safe Deposit Co., 44 N. J. Eq. 460, 14 Atl. 885; Appeal of City of Philadelphia, Trustee, &c., of J. M. Eisler, 112 Pa. St. 470, 4 Atl. 4; Oyster v. Knull, 137 Pa. St. 448, 20 Atl. 624, 21 Am. St. Rep. 890; McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412; Collins v. Williams, 98 Tenn. 525, 41 S. W. 1056.) Used here in connection with the word “will,” and where it is evident that the testator had undertaken to dispose of his entire estate, the word must be taken as mandatory rather than as advisory.
The word “revert” was evidently not used in its technical sense. It was not employed to express the idea that the property should be turned back to the son, as it had never been owned or held by him. In a loose way the term “revert to” is sometimes used as the equivalent of “go to,” and the language of the will, taken together, indicates that the term was used to designate the person to whom the testator wished the land to be given. It has been so interpreted in a number of cases by other courts. (Johnson v. Askey, 190 Ill. 58, 60 N. E. 76; Estate of Bennett, 134 Cal. 320, 66 Pac. 370; Bates v. Dewson, 128 Mass. 334.)
It is contended that the use of the phrase “provided that in such event” indicates that the testator was not making a mandatory provision. The proviso does not imply a doubt that the son might not accept the land with the condition attached, nor that the testator had in mind a contingency that the fee would not vest at his death. The term as used in the will means no more than that, having given the land to the son, he had required the payment of specific sums to his daughters and charged the estate devised with such payments. If it be necessary to show an acceptance of the devise by the son it is supplied by an averment in the answer to the effect that the son took and received a vested remainder in fee in the land, and is now the ■owner thereof, and on the trial the court found these averments in the answer to be true. The title to the-land vested in the son at the death of the testator, and -the rights of the daughters to the legacies also vested at the same time, to be paid by the son in accordance with the directions in the will. The son was not entitled to the possession of the land until the widow died and the life estate had ended, and no part of the legacies were to be paid until the first day of September following the first day of April after the death of the widow. These provisions, however, did not postpone the vesting of the title in the son, and as the will does not provide a limitation over in case of nonpayment, the legacies required to be paid by the son became fixed charges upon the land devised to him. Any one who succeeds to the interest of the son prior to the making of the payments takes the land, of course, subject to these charges.
There is complaint of the ruling of the court which refused leave to plaintiff to file an amended reply. The application was not made until some time after the case had been submitted and the judgment had been rendered. No sufficient grounds for opening the case at that time were stated, and in any case it must be held that the refusal was not an abuse of discretion.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
This appeal involves the validity of a contract in restraint of trade. The plaintiff bought certain house-moving material of the defendant, Bar-bee, who made the following written agreement: “I hereby agree to not contract no moving what Soever, and sold the Exclusive right of all moving to Geo. J. For for the next 10 years $150.00 witch is paid in full.” The probate judge, in the absence of the judge of the district court, granted a restraining order, which the judge of the district court on motion dissolved on the ground that the quoted contract is illegal and void.
The old rule as to limitations of time and space has given way to that of reasonableness, which depends largely on the effect of a contract upon the interests of the public. That the plaintiff should buy out the two other house movers in Kinsley and contract with them to remain out of that business would not preclude other house movers from competing with him if they should so desire, and the effect of such contracts upon the people of Kinsley and vicinity can not be said to be more than conjectural. There can be no question that Bar-bee had the right to agree to refrain from this line of business in competition with the plaintiff for ten years, and while he worded his contract so as to prohibit his reengaging in such business anywhere in the world for ten years, it is apparent that his resumption of the work beyond the limits of actual competition with the plaintiff could work no harm. Giving the contract a practical and sensible construction, the agreement was to refrain from competition with the plaintiff for ten years, and it was to enj oin this very thing that this suit was brought.
The following authorities are more or less in point: Pohlman v. Dawson, 63 Kan. 471, 65 Pac. 689; Mills v. Cleveland, 87 Kan. 549, 125 Pac. 58; Harris v. Theus et al., 149 Ala. 133, 43 South. 131, 123 Am. St. Rep. 17, Note, 26; Smith v. Webb, 176 Ala. 596, 58 South. 913; Eureka Laundry Co. v. Long, 146 Wis. 205, 131 N. W. 412, 35 L. R. A., n. s., 119; 9 Cyc. 529.
The judgment is reversed and the cause remanded with directions to grant the injunction.
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The opinion of the court was delivered by
Dawson, J.:
This is a dispute over the ownership of a town lot in Wichita. In 1903, Hetty Berk and J. B. Berk, who then owned the property, conveyed to “ J. E. Liggett, president of the National Home Building Company,” and received therefor $200 in cash and a mortgage to secure the payment of the balance, $150, executed as follows: “The National Home Building Company, J. E. Liggett, President.” Not long after, the company went into the hands of a receiver, and the receiver gave a quitclaim deed to the Berks to satisfy the mortgage, leaving them in possession. In September, 1907, L. W. Clapp received a tax deed to the property from Sedgwick county, and in August, 1908, Clapp brought suit to quiet his title, and judgment was entered in his favor October 6, 1908, against Hetty Berk, J. B. Berk and J. E. Liggett. On October 15, 1909, Clapp gave the Berks a quitclaim deed to the property. On April 17, 1909, J. E. Liggett gave one S. S. Allen a quitclaim deed to the same property; and Allen in turn gave a quitclaim deed to Russell Moore on March 10, 1911. Within three years after the judgment against Liggett and the Berks, Moore brought proceeding to open up the judgment, and issues were joined between him and the Berks. The trial court found that Moore held the legal title; that the original deed from the Berks to Liggett was to him personally; that the Berks’ mortgage had been satisfied; that the tax title of Clapp was void, and awarded the Berks a lien for taxes paid.
Counsel for the Berks assign various errors, but the only one worthy of note involves the finding of the court that the mortgage of the Berks had. been satisfied. In what manner had it been satisfied ? Certainly not by the receiver’s quitclaim deed since the court held that the Berks’ conveyance in 1903 was to Liggett personally. In view of that finding, the receiver’s deed conveyed nothing. Neither can it be declared that the judgment of Clapp against the Berks and Liggett bars the Berks’ mortgage, because that judgment was opened up and the last grantee in the chain of quitclaim conveyances under Liggett was let in to defend. It does not appear that the Berks filed any formal motion to have the judgment against them opened up to let them in, but that was a mere formality in this case. They were let in to defend, and the lawsuit was fought out between the Berks and Liggett’s grantee. No deeds of general warranty or the rights of innocent purchasers are involved. The issues were the same as if the original parties, the Berks and Liggett, were litigating over their original bargain with no subsequent transactions to complicate it. (Johnson v. Williams, 37 Kan. 179, 14 Pac. 537; Smith v. Rudd, 48 Kan. 296, 29 Pac. 310.) Liggett’s deed was declared to be a conveyance to him personally, and that the addition of his official title and relationship to the building company was mere descriptio persons. (Love v. Love, 72 Kan. 658, 83 Pac. 201; 10 Cyc. 1021; 13 Cyc. 625.) Now what about the other part of this transaction ? It may be conceded that considered as a mortgage from the company the execution was defective. But the court finds that the deed was to Liggett personally; and in equity it must be held that the entire transaction was with Liggett; and the mortgage, imperfectly executed though it be, must be considered an equitable lien on the property for the balance of the purchase money as against Liggett or his grantee under a quitclaim deed. Certainly the Berks did not intend to convey their property to Liggett and take back a mortgage on that property from another party who had no interest in it. Simple justice requires us to hold that the deed and the mortgage were complemental parts of the same bargain, and the grantee of the deed must be considered the grantor of the mortgage. (39 Cyc. 1296, 1297.) Liggett could not be heard to contend that he was simply perpetrating a fraud on the Berks; that it was his deliberate purpose to secure a valid deed to himself and to give back to the grantors a defective and unenforceable mortgage in the name of his company as part consideration for the deed to himself.
“Where the transaction is in its nature and circumstances such as to give one party an inequitable or unconscionable advantage over the other, equity, inferring fraud, will not only decline to lend its aid to the party seeking to enforce such claim, but will often actively interfere to give relief to the other party. . . . While it is said that equity has general jurisdiction, concurrent with law, for the enforcement of liens, equity nevertheless recognizes and enforces certain liens not recognized at law. Of these the most frequent species are the lien of a vendor for unpaid purchase-money, and the so-called equitable mortgages. Besides enforcing liens created by express contract, equity, while disclaiming the power to create a lien in the absence of contract, has nevertheless protected equitable rights by impressing liens in the absence of express contract and contrary to the rules of law.” (16 Cyc. 85, 88.)
On one point the record is not clear. In the mortgage the obligation to the Berks is $200; in the exhibits the sum due appears to be $150 and interest. The proper amount can be determined by the court below; and this cause is remanded to the district court with instructions to ascertain the exact sum due under the mortgage and to award Hetty Berk and J. B. Berk a lien on the property for the amount so determined, and thereupon the judgment will be affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on two promissory notes given by the defendant for the premium on a new life insurance policy issued in place of an old one which was surrendered. The plaintiff, a field manager under a general agent of the insurance company, negotiated the exchange of policies. The notes were made payable to the general agent, but the plaintiff took them up at maturity, and owned them when suit was brought. The defense was failure of consideration because the new policy had not been delivered. The plaintiff recovered, and the defendant appeals.
When the defendant sent in the old policy he stated that his mail should be sent to Box 1464, Tulsa, Okla., and the proof was that the new policy was duly mailed to the defendant at the address given. The court instructed the jury that this was a sufficient delivery of the policy to entitle the plaintiff to recover, the fact that the defendant did not receive it being merely a circumstance tending to show the policy was not mailed. There was evidence that the plaintiff, to whom the policy had been given for delivery, made an effort to deliver it to the defendant personally, that the defendant was in arrears on back premiums, that a half dozen letters written to him were not answered but were not returned, that the policy was not mailed earlier because the plaintiff was unable to hear from the defendant, and that a duplicate policy is easily procurable in case a policy be lost. On the facts stated the j ury found specially that the policy was duly mailed.
. The policy became binding on the insurance company when it was placed in the hands of the solicitor for unconditional delivery to the defendant. The contract of insurance was then complete, and manual delivery of the evidence of the contract to the insured by messenger was not essential to perfect the obligation of the defendant’s promissory notes. The adoption in good faith of the ordinary method employed by the business world for the transmission of such articles was sufficient. .
It is said that section 4341 of the General Statutes ■of 1909, making it unlawful for an insurance company or its agent to transfer premium notes to an innocent purchaser before delivery of the policy, bears upon the case, but manifestly this is not so. The question here presented is the sufficiency of the means employed to place the instrument in the possession of the defendant, and the cutting off of defenses by transfer to an inno-' cent •'purchaser is not involved. •
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a check. It was a check drawn by Gregg on November 1st, on A. Thomas & Co., bankers of Paola, and on the same day given to George & Co. On the 2d it was presented to the bank. It is not disputed by counsel that this was in due time. But it is claimed that no demand was made for money on the check, that the party simply sought to use it in buying exchange. We quote the plaintiff’s testimony on cross-examination on this point, and there is no contradictory testimony:
“November 1st 1869', Gregg gave me that check at our store-room, near the door. Don’t know time. At an early hour next day, I presented the check to Mr. Edwards in Paola bank, who then said to me they were not selling exchange, that day, on St. Louis. I did not demand exchange on any particular bank. I wanted exchange on St. Louis. I demanded no other exchange. Edwards slipped my order back, and said they were not selling exchange. I kept the check. I went into the bank with money and this check, and asked for exchange/on St. Louis. I asked the bank to give me credit on account; it refused. I took my money and check and left the bank; I did not ask the bank to give me money on that check; I did not wgnt the money. Never after presented the check.”
On his direct examination plaintiff had testified ín general terms, that he “presented the check for payment — the bank did not pay it — the bank refused to pay it.” This seems to us clearly sufficient. Waiving all question as to the matter of exchange on St. Louis, it appears that he asked the bank to credit the check to his account, and it refused. This was a dishonor of the check. It was unnecessary after that to go through the form of specifically demanding its payment in cash over the counter. Demand and refusal may be necessary; but no particular form or expression is essential to either. It is sufficient if it clearly appears that the bank, after a demand, refuses to accept the check as of the value its face indicates.
The learned counsel for plaintiff in error criticize the instructions asked by the defendant and refused, as also the single instruction given at the instance of the plaintiff. The last sentence in the latter is in these words: “And the holder of a check is not required to present it to the bank to which it is directed for payment more than once, when on the first presentation the bank has refused to pay the sa/me.” Counsel contend that “this carries upon its face to the jury the assumption by the court that George had once presented this check to the bank and demanded payment which was refused, and it was unnecessary to present it a second time.” We fail to see any such assumption. The whole instruction is a statement of an abstract proposition of law. There is in terms no reference to the parties or facts in the case. And any assumption which it carries, grows out of the fact that, though an abstract proposition, it is applicable to the facts as .they appeared in evidence.
Counsel insist that the court erred in refusing the first and ■ second instructions asked by defendant. Those instructions refer to the relations of banker and customer, and the effect of drawing a check upon the money in the hands of the banker. It may be that they state the rules of law correctly, but we fail to see how they would have assisted the jury in this case, which is a controversy between the drawer and ■holder of a check. At any rate, they are not so pertinent to* the issue as to make the refusal to give them an error calling for a reversal.
An instruction was asked and refused, which stated the law in respect to the failure to give notice of the non-payment, and stated the law correctly as applied to ordinary bills of exchange. The law is not so rigid in respect to checks. The failure to make demand within a reasonable time, and to give notice of non-payment by the succeeding day, does not absolutely discharge the drawer. It is sometimes said that the drawer is the principal party, the one primarily liable on the check. Perhaps this is not strictly correct; and yet, unless the drawer has suffered some loss by a failure to make demand and give notice, he is not ordinarily discharged from liability. In 3 Kent, p. 104, note “a,” it is said, “The drawer of a check is not a surety, but the principal debtor, as much as the maker of a promissory note. It is an absolute appropriation of so much money in the hands of the banker to the holder of the check, and there it ought to remain until called for; and the drawer has no reason to complain of delay unless upon the immediate failure of his banker. By unreasonable delay in such a case, the holder takes the risk of the failure of person or bank on which the check is drawn. This is quite distinct from the strict rule of diligence applicable to a surety, in which light stands the indorser.” Story on Prom. Notes, §§ 490-498, and notes; Little v. Phœnix Bank, 2 Hill, 425; Lester v. Jones, 8 Bush. (Ky.) 357; Pack v. Thomas, 13 Smedes & Mar. 11; Kemblen v. Mills, 1 Manning & Granger, 757; Byles on Bills, p. 14. We think the court did not err in refusing the instruction.
These are all the questions it seems necessary to notice, 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.:
This is an action of mandamus, to compel a • correct canvass of the votes cast in the county of Marshall for the office of county clerk. Upon the canvass that was made the canvassers rejected the returns from Waterville township, and declared one J. Gr. Mclntire elected. If those returns had been counted, the plaintiff would have received a majority, and been declared elected. Three questions are presented: First, will the court, after a canvassing board has made one canvass, declared the result, and adjourned, compel it, by mandamus, to reassemble and make a correct canvass on the ground that at the prior canvass it had improperly omitted to canvass all the returns ? Second, if the returns are regular in form, and genuine, may the canvassing board reject and refuse to canvass them, on the ground that during the election fraudulent votes were received, and other irregularities practiced by the judges and clerks of election? And third, will th'e fact that, after the poll-books and tally-sheets have been properly prepared and signed, and before their delivery to the township trustee and county clerk, they are tampered with and changed by outside parties, so far as respects the votes for candidates for a single office, justify the canvassing board in rejecting the entire returns, and in refusing to count the votes cast for the candidates for the other offices?
The first question 'must be answered in the affirmative, and the other two in the negative. We are aware that the authorities are not uniform upon the first question. See on the one hand, People v. Suprs. Green County, 12 Barb. 217; and, as partially indorsing this view, The State v. Berry, 14 Ohio St. 315; and on the other side, The State v. County Judge Marshall Co., 7 Iowa, 186; The State v. Bailey, County Judge, 7 Iowa, 390. The view taken by the Iowa court seems to us the correct one. It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by canvassing only a part, and refusing to canvass the others, as by refusing to canvass any. And it is settled by abundant authority, that where the board refuses to canvass any of the votes it may be compelled so to do by mandamus, and this though the board has adjourned sine die. Hagerty v. Arnold, 13 Kas. 367, is a case in point. The canvass is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance. And a candidate has as much right to insist upon a canvass of all the returns, as he has of any part, and may be prejudiced as much by a partial as by a total failure. The- adjournment of the board does not deprive the court of the power to compel it to act, any more than the adjournment of a term of the district court would prevent this court from compelling by mandamus the signing of a bill of exceptions by the judge of that court, which had been tendered to him before the adjournment. As a general rule, when a duty is at the proper time asked to be done, and improperly refused to be done, the right to compel it to be done is fixed, and is not destroyed by the lapse of the time within which in the first place the duty ought to have been done.
As to the other two questions, it is a common error for a canvassing board to overestimate its powers.. Whenever it is suggested that illegal votes have been received, or that there were other fraudulent conduct and practices at the election, it is apt to imagine that it is its duty to inquire into these alleged frauds, and decide upon the legality of the votes. But this is a mistake. Its duty is almost wholly ministerial. It is to take the returns as made to them from the different voting precincts, add them up, and declare the result. Questions of illegal voting, and fraudulent practices, are to be passed upon by another tribunal. The canvassers are to be satisfied of the genuineness of the returns, that is, that the papers presented to them are not forged and spurious; that they are returns, and are signed by the proper officers; but when so satisfied, they may not reject any returns because of informalities in them, or because of illegal and fraudulent practices in the election. The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court for contesting elections, or in quo warranto proceedings. It must' be borne in mind that the change in the returns in this case was made after their execution by the proper officers, and before they reached the county clerk’s office, was made by unauthorized and outside parties, and not by the election officers, and did not affect the number of votes cast and returned for this plaintiff, or his opponent. Under those circumstances we think the commissioners were not justified in refusing to canvass the returns from Waterville township, so far at least as respects the officers other than the one concerning which the tampering with and changing of the votes was had.
The peremptory writ must be awarded as prayed for.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
In 1868 an action was commenced by defendant in error before a justice of the peace against plaintiff in error and his father. In that action judgment was rendered against both defendants. This judgment was appealed to the district court, and upon a trial judgment was there rendered against plaintiff in error alone. During all these proceedings no guardian ad litem was appointed for plaintiff in error, and in the district court no appearance was made by him. Subsequently, alid in 1871, plaintiff in error filed his petition to have this judgment set aside, alleging that he was a minor during all those proceedings, that no guardian ad litem had been appointed, that he was absent at the time of the trial in the district court, and that he had a valid defense, etc., and that he had since become of age. On the hearing of this petition the court found all its allegations to be true, and set aside the judgment. Thereafter the original case coming on for trial, the defendant in error moved for leave to amend his bill of particulars by inserting in lieu of the name of plaintiff in error alone, his name by a guardian ad litem, which motion was sustained, a guardian ad litem appointed, who appeared, accepted the appointment, and filed his answer, and thereafter the trial, verdict and judgment were against the plaintiff in error by his next friend and guardian. To reverse this judgment this proceeding in error has been brought, and the error alleged is the appointment of a guardian ad litem, and permitting him to answer and take charge of the defense of the plaintiff in error. We think the objection well taken. When a party is. of age, and under no legal disqualification, the proceedings must be against him, and he cannot be ousted from the control and management of his defense. The fact that at the commencement of these proceedings he was a minor, and that then a guardian ad litem ought to have been appointed, does not justify the appointment of one after he has become of age and is entitled to the cqntrol and management of his defense. It stood as though he had been of age at the commencement of the proceedings. He and his property are responsible for any judgment that may be rendered against him. He certainly, therefore, unless under some legal, disqualification, should be allowed to take such measures as his judgment dictates are best to protect his interests; and to take this 'right from him, and commit it to the discretion of another, who at the best cannot have the same- personal interest that he has, is doing him a manifest wrong.
For this error the judgment must be reversed, and the case remanded for a new. trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced by information filed by the county-attorney of Saline county, November 3d 1875, charging that the defendant “on the 12th day of August 1875, in Saline county aforesaid, did unlawfully and willfully obstruct a public road, to-wit, a public road established by a statute of the state of Kansas, entitled, ‘An act to establish certain state roads/ and subdivision ! 3 of section 2 of said statute, and which said statute was approved February 27th 1866, and that said public road was located on or about the 17th of November, 1866.” The case was tried before the court, without a jury. The court, by request, made special findings of fact and conclusions of law, and found as conclusions of law —
“ 1st, That the law mentioned in the information, and upon which the proceedings of the road in question are founded, is void.
“ 2d, That there is and was at the time mentioned in the information no public highway as therein alleged.
“ 3d, That the defendant is not guilty as charged.”
The court then rendered judgment discharging the defendant. The state by its counsel then requested the court to tax the costs of the case to the prosecuting witness, which the court refused to do, and the court taxed the costs made by the state to the county. The state saved proper exceptions to all the rulings of the court below, and now brings the case to this court for review.
We suppose this action was prosecuted under § 17 of the road laws of 1874; (Laws of 1874, 171.) This section of the road law provides among other things, that any person who “shall willfully obstruct” any public road shall, on conviction, be adjudged guilty of a misdemeanor, and be punished by fine and imprisonment. Now, passing over all other questions, was the defendant guilty of willfully obstructing any public road ? We think not. In the vicinity of said supposed road a large portion of the community have never believed that the road has ever had any legal or valid existence. They have believed that the act under which it was laid out was unconstitutional and void. They have believed that the road was never legally established under the act. And it is certain, that the road has never been opened by any competent authority. There are no public records anywhere sufficiently showing it to be a public road, and there has never been toy considerable amount of travel upon it. The defendant owned the land when and where said supposed obstruction was created, and now owns the same. And believing that no legal public road ever existed in that place, he plowed up his land where said supposed road was located, along with his other land, and planted corn thereon. The said supposed obstruction consisted of hard-wood posts, set in the ground across said road, four or five feet apart, and each extending about three feet above the ground. The defendant placed these posts there merely for the protection of his crops, and not with any intention, willfully or otherwise, of obstructing a public road. We therefore do not think that the defendant was guilty of willfully obstructing any public road.
The questions whether said act of the legislature is valid or not, and whether said road was legally laid out or not, are too important to be decided upon a slight investigation of the same; and it is not necessary to decide them in this case. Before deciding them we would prefer to have them' elaborately argued before us. Even the question, whether the said conclusion of law of the court below, “that the defendant is not guilty as charged,” is conclusive, or not, is a question of too much importance to be decided now and in this case. In this case the court below made special findings of fact, and this was only a conclusion of law from said facts, and therefore the case of the City of Olathe v. Adams, 15 Kas. 391, does not decide this question. In that case the only finding made by the trial court was a finding for. the defendant.
The plaintiff also claims that the court below erred in rendering a judgment against the county for the costs of the case made by the state, and in not rendering judgment against the prosecuting witness for all the costs. Now this is a question in which the defendant is but very little interested; and the parties really interested in the question are not before the court. Before we can order a judgment to be rendered against the prosecuting witness for costs, we must have the prosecuting witness before us. Ex parte Polster, 10 Kas. 204; Ferguson v. Smith, 10 Kas. 394 ; Hodgson v. Billson, 11 Kas. 357. He should have an opportunity to be heard in this court.
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
Brewer, J.:
But a single question is in this case. The action was on a promissory note, brought by the payees against the maker and four guarantors. The payees claimed and recovered protest damages. Were they entitled thereto? We think not. Protest damages are recoverable only when protest is legally necessary to fix the liability of some party to the note or bill. German v. Ritchie, 9 Kas. 106. But notice of nonpayment is not necessary in order to charge a guarantor. It is said by Edwards in his work on Notes and Bills, page 242, after quoting from Chitty on Bills, that, “It is plain from the cases cited by him, as well as from the American authorities, that notice to the guarantor is not a term or condition of the contract; but only a mode of showing that the party guarantied has taken the proper steps to enforce or secure payment of the principal debt, * * * and that the guarantor of a bill is no party to the instrument, and is not by the custom of merchants entitled to notice of the dishonor.” See also 2 Parsons on Notes and Bills, 137. Our statute defining the parties who are liable for protest damages does not mention guarantors. It speaks of “ drawers, indorsers, makers, and obligors.” (Gen. Stat., 116, §§14, 15.) We think therefore that there was error in awarding protest damages and fees. It is well settled that any error apparent in the final judgment of a district court may be corrected by suit in error in this court, although no exception was taken thereto by the party complaining, and no appearance by him at the trial and judgment, and no motion made to set aside the judgment.
The judgment of the district court will be modified by striking out the protest fees and damages. The costs of this court will be divided.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
In 1864-5 the A. & P. P. Railroad Co. instituted condemnation proceedings, under the law of 1864, to obtain the right of way through certain tracts of land in Atchison county. And the two principal questions in this case are as to the validity of those proceedings, and as to the quantity of title transferred by them, if valid, to the railroad company.
We will consider the latter question first. Chap. 124 of the laws of 1864, entitled “An act to enable railroad companies to acquire title to lands for railroad purposes,” prescribes the steps to be pursued in these condemnation proceedings; and in § 4 it is provided that, “to such portions of such road * * * title in fee simple shall vest in such company, its successors and assigns.” This language is plain, and susceptible of but one construction. The clear intent of the legislature was, that the railroad companies should acquire a perfect and absolute estate, and not simply an easement. This being the clear meaning of the statute, the power of the legislature to enact it is challenged. It is said that “the right to appropriate private property for public use has always been limited to the actual necessities of such use,” and that an easement is all that is necessary to secure to the railroad company the fullest possible enjoyment of the land for its purposes. All this may be true; but the question of the necessity is one for the legislature, and not for the courts. It is said by Cooley in his work on Constitutional Limitations, p. 558, that, “It seems, however, to be competent for the state to appropriate the title to the land in fee, and so to altogether exclude any use by the former owner, except that which every individual citizen is entitled to make, if in the opinion of the legislature it is needful that the fee be taken.” True, in a note he says, “We think it would be difficult to demonstrate the necessity for appropriating the fee in case of any thoroughfare; and if never needful, it ought to be held incompe tent.” But notwithstanding this suggestion in the note, we think the doctrine of the text fully sustained by the authorities. Moore v. City of New York, 4 Sandf. 456; Heyward v. Mayor of New York, 3 Seld. 314; Reesford v. Knight, 1 Kernan, 308; Beekman v. S. & S. Rld. Co., 3 Paige, 75; Pierce on Am. Rld. Law, 161; Halderman v. Penn. Cent. R. R., 50 Penn. St. 425; Waterworks Co. v. Burkhart, 41 Ind. 364; Dingley v. City of Boston, 100 Mass. 544; Brooklyn Park Comm’rs v. Armstrong, 45 N. Y. 234; Coster v. N. J. Rld. Co., 3 Zab. 227; P. & R. I. Rld. Co. v. Birkett, 62 Ill. 332; Ral. & G. Rld. Co. v. Davis, 2 Dev. & Bat. 451; State v. Rives, 5 Iredell, 297; DeVaraigne v. Fox, 2 Blatch. C. C. 95. In this last case the law is thus stated: “ In the exercise of its power to devote private property to public use, the legislature are the exclusive judges of the degree and quality of interest which are proper to be taken, as well as of the necessity of taking it.”
Again, it is urged by counsel, that, as our constitution recognizes the granting of the right of way, it by implication forbids the acquisition of anything beyond the mere right of way. Sec. 4 of art. 12 of the constitution reads; “No right of way shall be appropriated to the use of any corporation until full compensation,” etc. We cannot give to this the force that is claimed. The right of eminent domain is not granted by this section. That right is one of the powers inherent in the state, as the representative of the public; and this section operates only as a restriction upon this power. If the term, “right of way,” is here used in its restricted, technical sense, as referring simply to a mere easement, it would have the power to take the fee unrestricted in the matter of compensation. We think it should be construed, not as defining»the quantity of interest to be transferred, but as meaning the right of passage through the grounds of others, irrespective of the interest or title to be acquired. We see therefore in this nothing to limit the force of the adjudications elsewhere; and whatever might be our views, if the question were a new one, we feel constrained to follow what seems to be the almost unbroken line of decisions. We hold therefore that title in fee simple passed by the condemnation proceedings, if those proceedings were in conformity to the statute. It may be remarked that the legislature of 1868 changed the law as to the quantity of estate passing by such proceedings to a railroad company, (Gen. Stat. 213, § 84,) where it is provided that “the perpetual use of such lands shall vest in such company, its successors and assigns for the use of the railroad.”
Were the proceedings in this case in conformity to the statute ? It appears that the application of the railroad company was made on the 24th of August 1864; that the 26th of September following was the day fixed by the commissioners for the commencement of the work of laying off the route; that publication of notice of such time was duly made in the “ Champion,” the first publication being on the 25th of August, and more than thirty days before the appointed day; that the commissioners met at the appointed time and commenced their work; that after completing it they filed in the county clerk’s office a written report thereof; that a copy thereof was duly filed in the county treasurer’s office, the damages paid, and the report thereafter filed and recorded in the office of the register of deeds. It also appears that the then owners of the tracts through which the right of way was condemned accepted the appraisement and received the money, that the road was constructed and in operation through these tracts in 1866; and that in 1868 and 1869 the plaintiff in error purchased the tracts of thé then owners, receiving warranty deeds therefor. At the time of this purchase the hundred-feet strip was not all actually occupied by the railroad company, but only a strip of about twenty feet in width. The balance was and had been cultivated by the prior owners. The affidavit of publication of notice recited that the “notice was published in said newspaper for five consecutive weeks, the first publication being on the 25th day of August 1864, and the last on the 29th day of September 1864.” In recording this affidavit by the register of deeds a clerical mistake was made, the figure 8 being substituted for 5, so that it stated that the first publication was on the* 28th, and less than thirty days before the appointed time for the meeting of the commissioners. Now it is contended by counsel for plaintiff in error, that the occupation by the railroad company, at the time of the purchase by plaintiff in error being only of a twenty-feet strip was no notice of any claim to the balance of the one-hundred-feet strip, and that the purchaser was chargeable with notice of the condemnation proceedings only as they appeared upon the records of the register of deeds’ office; and that as they there appeared, they showed proceedings invalid, in that no legal notice appeared to have been given of the time of the commissioners’ meeting. In this we think counsel is mistaken. The full legal notice was actually given; the proceedings actually had were regular. By those proceedings the title of the then owners was wholly divested. This was divested, not by a voluntary conveyance, but by proceedings in invitum, to compel a transfer, exactly as by a sheriff’s sale. Now as to such proceedings a party may not trust entirely to the records of the office of register of deeds, but must take notice of whatever appears upon the records of every officer or tribunal having jurisdiction of such proceedings. Again, there was sufficient in the record in the register of deeds’ office to put the plaintiff in error upon inquiry. The report of the commissioners recited that notice had been published for thirty days. The day of the last publication was given as September 29th. Running back five weeks would bring it to August 25th, and not August 28th. This record was but a copy of a copy. Proof of publication was not by the law, in terms at least, required. (Sec. 6 of the act, Laws of 1864, p. 237.) The only object of the publication is notice to the land-owners. If with a defective publication, or without any publication, they had appeared to the proceedings, and accepted the award, neither they nor their grantees would be heard to say that the notice was defective, or omitted. We think therefore, as against this plaintiff the court prop erly ruled that the proceedings were regular and valid. Some other questions are raised by counsel, but in the view we have taken of these two principal matters, it seems unnecessary to consider them.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The petition in error in this case ought probably to be dismissed because of a defect of parties in this court. But as we think the judgment of the court below is correct, we shall pass over the question of dismissal, without deciding it, and proceed to consider such questions as are involved in the merits of the case. The facts of the case are substantially as follows: The Union Pacific Railway Company, Eastern Division, owned three lots in the city of Salina., Mrs. M. A. Bickerdyke desired to build a hotel on them. The parties thereupon agreed that Mrs. Bickerdyke should build and furnish said hotel, that the railway company should advance some money by way of a loan to assist her in building and furnishing the same, and that when she should build and furnish it, and pay back to the railway company the amount of money advanced by the company to her, the company would then execute a deed conveying to her .the full legal title to the property. Under this contract the railway company furnished to Mrs. Bickerdyke the sum of $7,512.85, and she built and furnished said hotel. But she has never yet refunded said sum of money, or any part thereof, and the company has never yet executed to her a deed for said property. Said contract between the railway company and Mrs. Bickerdyke was originally entirely in parol. But subsequently, and on November 4th 1867, Mrs. Bickerdyke gave to the railway company her two promissory notes for said amount of money, and also gave a mortgage on the hotel property and on the furniture therein to secure the payment of said notes. The original parol contract was not however in any other manner disturbed or altered by these transactions. While Mrs. Bickerdyke was building said hotel she obtained labor and materials therefor from the defendants below, plaintiffs in error. The defendants below afterward duly filed statements for mechanics’ liens on said property under the provisions of the statutes of 1862. (Comp. Laws, 680, et seq.) These claims of the defendants have never been paid or satisfied. The court below held that these claims were valid liens upon the property, but also held that they were subsequent to the lien of the plaintiff (the railway company) thereon. When the contracts for furnishing said labor and materials were made, is not shown. Whether any of them were made before the railway company furnished said money, is not shown. Therefore, in support of the decision of the court below we should presume that said contracts for labor and materials were made after the money was furnished, although probably it would make no difference in the decision of this case whether they were made before or afterward. Some of the defendants furnished labor and materials before said mortgage was executed, and some of them afterward. The judgment of the court below was, that the property should be sold and that the claim of the railway company should be first paid from the proceeds thereof. Of this the defendants (plaintiffs in error) complain. They claim that their claims should be first paid. We think however that the judgment of the court below was correct. We think that it is not only supported by reason and justice, but. it comes fairly within the spirit of the mechanic’s-lien law itself. The defendants make their claim exclusively under §17 of that law. (Comp. Laws, 683.) But §17 must be read in connection with § 14; and indeed, in connection with the whole of the law upon the subject of mechanics’ liens. Then, taking the whole of the law together, and it undoubtedly means that a mechanic’s lien shall operate upon the whole of the estate which the person procuring the labor and materials may have in and to the property for which he procures the same, whatever may be the character of that estate, but that such lien cannot operate upon anything more than such estate, and that so far as it does operate, it is the paramount lien upon the enhanced value given to such estate by the labor and materials. That is, it is the paramount lien upon the surplus value of the estate over and above what would have been the value of such estate without such labor and materials. In the present case Mrs. Bickerdyke had a contingent equitable estate in the property in question. The plaintiff had all the rest of the estate. Upon this contingent equitable estate of Mrs. Bickerdyke the defendants’ liens operated, and upon that they were the paramount lien to the extent above mentioned; but they operated upon nothing more. They could not operate upon anything more. They could not reach something that Mrs. Bickerdyke did not have. They could not reach to the plaintiff’s legal estate. A lied upon an estaté cannot be greater than the estate itself. A stream cannot rise higher than its fountain. And therefore, we think that said liens did not in any manner affect the legal estate of the plaintiff, or its rights thereunder. But the plaintiff (as well as the defendants) had liens upon Mrs. Bickerdyke’s equitable estate. It had a vendor’s lien, (Stevens v. Chadwick, 10 Kas. 406,) and a mortgage lien, upon the same. But for the purposes of this case we shall consider that the defendants’ liens were paramount to either of these liens of the plaintiff. Indeed, for the purposes of this case we shall consider the mechanics’ liens of the defendants upon Mrs. Bickerdyke’s equitable estate as paramount and stronger than any other liens could possibly be. But the plaintiff had more than the said vendor’s lien and mortgage lien upon Mrs. Bickerdyke’s equitable estate. It also had a lien upon the legal estate, and held such legal estate in its own hands as a security for its own claim. And these last-mentioned rights of the plaintiff are rights' not derived from Mrs. Bickerdyke, or from the defendants, or from any common grantor; but they are rights originally held by the plaintiff, reserved to it by the transactions with Mrs. Bickerdyke, and with which it has never parted. And these rights are governed more by the law relating to vendor and vendee than by any law relating to liens or incumbrances. Originally the plaintiff held the whole of the estate, both legal and equitable. It parted with the equitable estate upon certain conditions. But it reserved to itself the legal estate, with a lien upon it to secure the payment of said debt of $7,512.85. Now, how can the plaintiff be divested of this legal estate except by the payment of said debt — except by the fulfillment of the terms and conditions upon which it agreed to divest itself of said legal estate? To take the legal title to said property from the railway company without paying said debt, against the consent of the company, and for no crime or fault of the company, would look very much like confiscation. If the judgment of the court below had merely ordered Mrs. Bickerdyke’s equitable estate to be sold to satisfy the defendants’ claims, then possibly there would have been no necessity for making any provision for the payment of the plaintiff’s claim. But the purchaser of the property in such a case would have stood precisely in the place of Mrs. Bickerdyke. He would have obtained precisely her equitable estate; nothing more, and nothing less. And before he could have obtained the legal estate he would have had to fulfill all her obligations to the plaintiff. But the court below did not stop 'with ordering that the equitable estate of Mrs. Bickerdyke should be sold. The court ordered that the entire estate, legal as well as equitable, should be sold. And therefore, as the sale would divest the plaintiff of its legal estate, the court had to provide by its judgment for paying • the plaintiff’s claim. We see no error in this. On the contrary, it was eminently just and legal. We suppose that no .one will claim that the giving of said promissory notes for the debt, and the.giving of said mortgage upon Mrs. Bicker-dyke’s equitable estate and upon the furniture in the hotel to secure the payment of said notes, will in any manner change the plaintiff’s rights with regard to the legal estate, when at the same time the legal estate was reserved as a further security for the payment of said debt.
■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
Valentine, J.:
The constitution of the state of Kansas provides, that “All county and township officers may be removed from office in such manner and for such cause as shall be prescribed by law.” (Const., art. 9, § 5.) On September 21st 1874, the legislature in special session passed an act containing among others the following provisions:
“Sec. 3. It shall be the duty of the probate judge in each county, once during each quarter of each year, without notice to said county treasurer, to examine and count the funds in the hands of the county treasurer; and the county commissioners of each county shall, prior to each examination, appoint two persons, citizens and taxpayers of the county, whose duty it shall be to assist the probate judge in making the examination aforesaid; but no person so appointed shall act as examiner more than once in the same year.
“Sec. 4. If the probate judge and the examiners find the funds in the treasury, as appears by the books of the county treasurer, they shall so certify in a report to be filed with the county clerk, and make oath to the same; and if they find a deficiency, of funds in the treasury, they shall report the facts immediately in writing to the county clerk, and the county clerk shall immediately notify the county commissioners of the filing of said report, and the county commissioners shall meet forthwith and take such action as may be necessary to preserve and protect the funds of the county, and also to take any other action that may in the judgment of the commissioners be necessary and proper to protect the public interest, including the power to suspend of remove such treasurer, and the appointment of some competent person to discharge the duties of such treasurer during the time of such suspension, or for the unexpired term in case of a removal; and the person so appointed shall give a good and sufficient bond, to be approved by the county commissioners.” (Laws of 1875, pp. 263, 264, §§ 3, 4.)
On November 9th 1874, the board of county commissioners of Crawford county, in accordance, with the provisions of said act appointed two examiners to assist the probate judge in examining and counting the funds in the office of the county treasurer. The defendant, E. W. Majors, was at that time, and had been for several months prior to that time, the county treasurer of said county. The probate judge and said examiners performed their duty, and on December 4th 1874 made a written report of their proceedings to the county clerk of said county. Said report shows a deficiency in the funds of the county treasurer’s office amounting to at least $3,701.35. The county clerk immediately notified the county commissioners, and they met on December 5th in special session to consider the matter. They immediately notified the treasurer, who appeared before them, and they then proceeded to make another examination of the books, papers, funds, etc., in and belonging to the county treasurer’s office. The treasurer made such explanations as he could, and supplied them with such vouchers as he had. After making a full examination the commissioners found that there was a deficiency in the funds of the county treasurer’s office amounting to the sum of $6,246.25. They therefore, on January 15th 1875, made the following order:
“Now therefore, in order to protect the interests of said county, the board of county commissioners, by authority in them vested by virtue of said law approved September 21st 1874, do hereby order, that E. W. Majors, county treasurer of Crawford county, Kansas, be and is hereby removed from said office, and further order and declare the said office of county treasurer for Crawford county to be vacant.”
The county board also on the same day appointed Nelson Sennit to fill said vacancy. Sennit qualified, and demanded the office, but Majors refused to give it up; and this action is now prosecuted by the county-attorney of said county for the purpose of removing Majors from said office.
The pleadings are so framed that no question is raised as to whether Majors was in fact guilty of any dereliction of duty in said office or not. The only question, under the pleadings, is, whether said proceedings of the commissioners, the probate judge, examiners, county clerk, etc., were had or not. The petition alleges them, and the answer denies them. The allegations of the petition are however amply proved by the evidence submitted to us, which of course puts an end to the issues raised by the pleadings. But a more serious question arises. Are said proceedings sufficient to authorize the present action? The defendant claims that the act of the legislature under which they were had, is unconstitutional, and urges many reasons therefor. Now we shall consider the question with reference to the present case only; for the act may be constitutional when applied to some cases, and unconstitutional as to others.
We do not think the act is unconstitutional because passed by the legislature in special session; for, although they were convened for another and different purpose, yet when they were assembled together they had the power to legislate upon any subject not specifically withdrawn from their consideration by the constitution.
We do not think that a county treasurer has such a vested right in his office that no law can be passed during his term of office creating a new cause in law for his removal therefrom, and creating a new tribunal and a new procedure for such removal, provided of course that the law shall apply to such causes of removal only as shall in fact be brought into existence subsequent to the passage of the law. The legisla ture may create new offices, or new tribunals; or may confer new duties — judicial, quasi-judicial, or ministerial — upon officers already in existence. (In re Johnson, 12 Kas. 102, 104, and cases there cited; Young v. Ledrick, 14 Kas. 92.) The title to' said act is evidently broad enough to cover all the provisions contained in the body of the act.
The proceedings authorized by the act are evidently “due process of law,” because the act itself is authorized by the constitution. The legislature is clearly authorized by § 5 of article 9, if not by § 1 of article 2 of the constitution, to provide for the removal of county treasurers for just such causes, by just such a tribunal, and by just such a mode of procedure, as are provided for in said act. The wisdom of conferring such plenary powers upon county commissioners in such important cases, may well be doubted. But the power of the legislature to do so, if it chooses, we suppose cannot be doubted. It was evidently the intention of the legislature to confer upon county commissioners the power to remove county treasurers by proceedings summary in their nature, and not more formal than the ordinary proceedings of county commissioners are. About the time this act was passed, and immediately prior thereto, several county treasurers had become defaulters; and evidently the legislature intended to provide a means for the removal of county treasurers more speedy in its nature, and less formal than the ordinary action in the nature of quo warranto. And although the proceedings may be hasty, summary, informal, and by a tribunal not skilled in the law, yet the proceedings are none the less “due process of law.” (Gilchrist v. Schmidling, 12 Kas. 264, 271, et seq.) It has been settled for more than forty years, that the 5th article of the amendments to the constitution of the United States applies only to the government of the United States, and does not apply to the several state governments. (Barrow v. Mayor, &c., 7 Peters, 247.) Of course, it was necessary for the county commissioners to have jurisdiction in order to make their proceedings legal and valid. But how their jurisdiction could be questioned in this case, we cannot understand. The law gives them jurisdiction in this class of cases. And they obtained jurisdiction of this particular case by proceeding precisely in accordance with the statute. The defendant must have had knowledge of the fact, at the time it occurred, that the probate judge and the examiners were examining his books and counting the funds in his office. Then, on the very next day after the probate judge and examiners made their report, the commissioners gave him notice thereof. And he immediately appeared before the commissioners, and seems to have been present and participating in all the proceedings pertaining to his office, until the final termination of the commissioners’ examination. Did not the commissioners then have jurisdiction of his person ? It is not claimed that any unfairness was practiced by the commissioners in their examination. They examined all the vouchers the defendant presented to them, and listened to all his suggestions. They undoubtedly intended to act fairly and honestly. The defendant however claims in his brief that they were mistaken; that in fact there never was any deficiency in the funds of his office since he held it. What the real facts are, we are unable to determine from anything presented to us. But the commissioners found that there was such a deficiency; and for the purposes of this case we must presume that such finding is true. The commissioners undoubtedly had jurisdiction, and whether we consider that they acted judicially, quasi-judicially, or ministerially, still their acts must be considered as at least prima facie correct until the contrary is shown, and there is nothing in the case that tends to show the contrary. We therefore think.that their action in removing the defendant from the office of county treasurer is valid; and therefore judgment of ouster must be given in this ease in favor of the plaintiff, and against the defendant.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a school-district order. The defense was payment. The facts are these: On March 11th 1874, a school-district order was drawn by the director and clerk of said school district upon its treasurer, and pay able to C. W. Walker, or order, out of the teachers’ fund, for $126, for teaching school. In February 1874, Walker drew upon the said treasurer in payment of certain indebtedness three several orders, amounting to $125.93, which, on the 10th of March, were accepted by the treasurer, and on or before the 16th paid by him out of the teachers’ fund belonging to the district. This was one of the orders:
Washington, Washington County, Kas.,
February 18th, 1874.
Treasurer of District No. 10: Please pay to the order of Cullemore & Brothers twenty dollars, and this shall be your recéipt to me for the same as teacher of school in said district.
C. W. Walker.
The other orders were similar. On the 16th of March, Walker, then the holder and owner of the school-district order, presented the same to the treasurer, who tendered him the three orders so accepted and paid as aforesaid, and seven cents in currency, the same making the full amount of the school-district order, but Walker refused to receive this payment, and thereafter indorsed the order to plaintiff Collins, who received the same with full knowledge of all the facts.
Was the district liable? Of course, Collins has no higher rights than Walker; and any defense good against the latter is good against the former. And we think the facts make out a defense as against either. Of course, the district cannot avail itself of any private transactions between the treasurer and the teacher, or offset a debt due from the latter to the former against its own indebtedness. But on the other hand, if Walker has received .out of the funds of the district payment of its indebtedness to him, no matter how irregularly it has been received, he is estopped from denying it to be payment. Supposing he had stolen so much money from the funds of the district in the hands of its treasurer: could not the district set off the amount thus stolen against his claim ? So, if in any way without crime he has received out of the same funds any moneys, such receipt is to that extent payment of its debt. In the case before us, after the indebtedness had nearly all accrued he draws an order, not upon any individual as such, and without naming any individual, but upon the treasurer of the district, the custodian of the funds of that corporation which is in debt to him, and specifies in the order that it shall be a receipt to him for the debt due by the district. This order is accepted and paid. Grant that it was done irregularly, and that the treasurer should have waited until the official evidence of the district’s indebtedness was presented; but as it was done, and Walker received the benefit of it, he at least is estopped from saying that it was not regularly done. He cannot say that it was a mere private transaction between himself and the individual who happened to be at the time treasurer of the district, for the order which he drew shows the contrary. He has received his pay once, and neither law nor good conscience will tolerate that he recover it-again.
It is scarcely necessary to say that after a question has been once fairly presented and decided on a demurrer, it is unnecessary, if it were proper, to raise it again by the offer of testimony.
The judgment will be reversed, and the case remanded with instructions to overrule the demurrer to the second defense, and for further proceedings in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by W. S. Short against Jonas L. Fletcher and wife, and E. J. Nooner, on a promissory note and mortgage. The petition shows that Fletcher executed the note; and that he and his wife executed the mortgage. The only allegation in the petition with respect to Nooner is as follows: “That the said defendant E. J. Nooner has or claims to have some interest in or lien upon said premises as described in said mortgage-deed, but plaintiff is ignorant of the nature and extent thereof, and does not know whether the said defendant Nooner has at this time any subsisting lien upon said premises, and he demands proof of the same.” The petition then prayed for a judgment against Fletcher for the amount of the note, and “for a decree” against all the defendants “for the foreclosure of said mortgage-deed, and that the said premises be sold,” etc. Fletcher answered to said petition, pleading payment; but neither of the other defendants made any appearance in the case. Afterward, the following judgment was rendered, to-wit: “That said defendants Amanda M. Fletcher and E. J. Nooner be forever debarred and foreclosed of any and all right, title, and interest in and to the premises, or any part thereof, in plaintiff’s petition described.” This was the only judgment rendered in the case at that term of the court, and such judgment had no connection whatever with any personal judgment for money, or for any judgment for a sale of the mortgaged premises. It was absolute in its terms. The case was then continued as to Jonas L. Fletcher, and afterward, and at the next term of the court, a personal judgment was rendered in favor of Short and against Fletcher for the amount of said note, and that the mortgaged property be sold to satisfy said judgment. Afterward, Nooner filed a motion to set aside the judgment rendered against him. When the motion came on to be heard plaintiff Short appeared specially and objected to the service of the notice of the motion on him, and moved the court to set such motion aside. The court however overruled his objection and motion, and the plaintiff excepted. And Nooner’s motion again coming on to be heard, both of the parties made a general appearance, “the plaintiff Short in person and by his attorney O. F. Hutchings; and said motion was duly heard, and argued by counsel; in consideration of the premises, and the evidence submitted, the court does [did] sustain the motion of said defendant Nooner;” and the plaintiff again excepted. The plaintiff then asked leave of the court to amend his petition, which was granted. Here was another general appearance by the plaintiff. Time was given to the plaintiff in which to make such amendment, and time was also given to the defendant Nooner in which to answer to the amended petition. This case for the supreme court was immediately made, and settled and signed while the action was still pending in the court below in the exact condition above specified.
It was evidently irregular and erroneous to render a judgment against Nooner at the time said judgment was so rendered against him; and this would be so even if the allegations of the plaintiff’s petition were considered sufficient in every respect. In this state, in the foreclosure of a mortgage on real estate made to secure a debt, no judgment barring any person’s right, title, interest or equity in or to the mortgaged property should be rendered until a judgment for the sale of such property has first been rendered; and the judgment barring such rights and interests should be made to operate only in connection with such sale and after such sale has been made; and no judgment for the sale of the mortgaged property can regularly be rendered until a judgment for the amount of the debt due and secured has first been rendered ■ in favor of the holder of the. note and mortgage. The judgment rendered against Nooner was not a contingent judgment, depending for finality upon some other action or event to take place in the future. It was absolute in its terms, and barred Nooner of all right to the property, whatever that right might be, and whatever might take place in the future. The court below may have set aside said judgment merely because it was rendered before it properly could be rendered. If so, then the order setting the judgment aside was not a final order, and cannot at this time be reviewed by this court. (McCulloch v. Dodge, 8 Kas. 476.) But if is claimed by plaintiff in error that the court below set said judgment aside principally upon the ground that the plaintiff's petition did not state facts sufficient to constitute a caiuse of action against Nooner; that the petition was so defective that it could not sustain or uphold any judgment as against Nooner; and plaintiff in error therefore claims, that the order setting aside said judgment is final; that it in effect determines the action as between himself and Nooner, and prevents any judgment from being rendered between them; and he therefore claims that the action of the court is reviewable at this time. (Code, §§ 542, 543.) He claims that his right to have the same reviewed was complete as soon as the judgment was set aside, and before he asked leave to amend his petition, and that he did not waive or suspend such right by asking and obtaining such leave. But passing over all these preliminary questions, we think the decision of the court below upon the main question, and upon the merits of the case, was correct. We have already quoted all the allegations of the petition that are supposed to state any cause of action as against Nooner, and we do not think they state any such cause of action. What did Nooner admit by his default, by not answering to said petition? He merely ad mitted the truth of the allegations therein contained — nothing more, and nothing less. He admitted that he “ Nooner has or claims to have some interest in or lien upon said premises as described in said mortgage-deed;” that “plaintiff is ignorant of the nature and extent thereof, and does not know whether Nooner has at this time any subsisting lien upon said premises, and he [plaintiff] demands proof of the same.” These allegations are certainly not sufficient to sustain or uphold any judgment. The usual allegations in cases of this kind are substantially as follows: “ That the defendant Gr. H. has or claims some interest in or lien upon the said real property; but the same, whatever it may be, is subject to the lien of the said mortgage.” This form is taken from 2 Estee’s Pleadings and Forms, 265, No. 450. See also, Miller’s Pl. & Pr. 610, No. 208; 5 Wait’s Pr. 199; 1 Nash Pl. & Pr. (4 ed.) 737, No. 5; 2 Van Santvoord’s Pl. (2 ed.) No. 55; 2 Monell’s Pr. 390, No. 147; Curtis’ Eq. Prac. 59 to 62, Nos. 18 and 19. This form of pleading, or of allegation, in this particular class of cases, (as above quoted from 2 Estee’s Pl. & Forms,) has been held to be sufficient; (Drury v. Clark, 16 How. Pr. 424; Frost v. Koon, 30 N. Y. 428, 448;) and we think it is sufficient. But the form adopted by the plaintiff below we think has never been held to be sufficient by any court, and we do not think that it is sufficient. And we do not think that such a form ever was sufficient in any case, either in law or equity. Every word of the plaintiff’s petition may have been true, and yet Nooner may have been the absolute owner of the property in controversy, holding the same free and clear from all incumbrances. There is no allegation in the petition that Fletcher, the mortgagor, ever owned or had any interest in the property. And Nooner claims that he himself is the owner thereof. There should have been some allegation in the petition showing that Nooner’s claim to the property was junior, or inferior, to the mortgage-lien of the plaintiff. And it will be noticed that the said judgment against Nooner was.not a judgment barring only such rights and interests of Nooner as were sub sequent to the mortgage-lien, but it was a judgment that barred all of Nooner’s rights and interests in and to the property.
In connection with this subject, and as to who are proper parties in foreclosure suits, and as to what defendants confess by a default in such suits, see Frost v. Koon, supra; Lewis v. Smith, 9 N. Y. 502; same case, 11 Barb. 152. The form given by Judge Swan in his work on Pleading and Precedents (No. 142, page 416,) we think is hardly sufficient.
Counsel for plaintiff in error has made a point in this court, as well as in the court below, that the service of the notice of. the motion to set aside said judgment was not sufficient. We suppose it is not necessary to say anything further upon this question.
The order of the court below setting aside said judgment will be affirmed.
All the Justices concurring.
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Opinion by
Simpsoh, C.:
Deisher sued Gehre, the principal, and Klauer, the surety, before a justice of the peace, on a written undertaking that reads as follows:
“State oe Karsas, Courty op ShawNee, ss.:
“Know all men by these presents, that we, Adam Gehre, of the county of Shawnee, state of Kansas, as principal, and Herman A. Klauer, of the same county and state, as surety, are held and firmly bound unto J. R. Deisher, of the same county and state, his heirs and assigns. Dated this 17th day of January, 1887.
“The conditions of the above obligation are such that, whereas, H. S. Clark, a justice of the peace for the city of Topeka, Kansas, Shawnee county, did render a judgment in the ease of J. R. Deisher v. Adam Gehre, decreeing that the possession of the following premises, to wit: 8 by 30 feet of ground in the southeast corner of lot No. 170, on Eighth street east, in the city of Topeka, Shawnee county, Kansas, should be delivered unto the said J. R. Deisher; and, whereas the said Gehre has applied for and obtained a writ of error to the district court of Shawnee county, Kansas, in said case, and a stay of execution therein: Now, therefore, if the above bounden, Adam Gehre and his surety, shall not commit or suffer to be committed any waste thereof, and shall pay double the value of the use and occupation of the property from date of this undertaking until its delivery, and all damages and costs that may be awarded against him in case the judgment be affirmed, then this obligation to be in full force and effect; otherwise to be and remain null and void.
“Dated and signed this 17th day of January, 1887.
A. Gehre.
HERMAN A. KlAUER.''
The case was tried and a verdict had before the justice, and an appeal taken to the district court. A jury was waived and the case tried by the court, which made the following written findings of fact and conclusions of law:
FINDINGS OF FACT.
“1. The undertaking on which this action is founded was duly made and filed in this court January 17, 1887.
“2. The petition in error described in plaintiff's petition was affirmed by this court January 27, 1887.
“ 3. The defendant retained possession of the premises in question up to and including February 25, 1887.
“4. The-rental value of the premises, including land and building thereon, from January 17, 1887, to February 25, 1887, both days inclusive, was $10 per month, or for thirty-six days was $12.
“5. The rental value of the land without the building was $4 per month.
“ 6. The rental value of the building exclusive of the land was $6 per month for the same time.
“7. The value of the services of plaintiff's attorneys, rendered in the district court in connection with the petition in error described in’ plaintiff's petition, was $15.
“ 8. The plaintiff, J. R. Deisher, had leased the ground described in his petition, together with other ground, from C. K. Holliday for a term of years, and Holliday was and is the owner of said ground.
“9. After plaintiff, J. R. Deisher, had leased the ground from Holliday, Deisher entered into a contract with J. Heller, by which Deisher agreed to rent the ground described in plaintiff’s petition to Heller for four years, and Heller was to pay him for the use of the ground $4 per month, and have the privilege of putting up a shop on said ground, and Deisher agreed to pay Heller for his shop the cost price, if he (Heller) at any time wanted to quit the business there. After Deisher and Heller had made this contract, the rent was reduced by Deisher to $3.50 per month, and when Heller sold to Gehre it was agreed between the parties that Gehre was to pay Deisher the original contract price; they agreed to make a written lease in accordance with the above facts, but it was neglected and never drawn up.
“ 10. Heller built a shop upon said ground, of the value of $125, and after running a butcher shop there for some months became sick and unable to continue in the business. Heller then sold out all his interest in said building, together with his butcher shop, to the defendant, Adam Gehre, and Gehre paid the full value of said building. Deisher was notified by Heller that he (Heller) had sold out to Gehre, and Deisher was satisfied with the sale, but said that Gehre must pay him $4 per month for the use of the ground. Gehre took possession of said building and built an addition thereto of ten feet, with the knowledge and consent of Deisher, who was doing business at the next door to Gehre.
“11. After Gehre had been doing business for about-months, and had paid $4 per month for rent, Deisher notified him that he must pay $15 per month, instead of $4. On the same day that Deisher notified Gehre that he must pay $15 per month, he served upon him a thirty-days’ notice to quit the premises. Deisher did not raise the rent for the purpose of having Gehre pay it, but for the purpose of driving him out. When the month’s rent became due Gehre tendered Deisher $4. At the end of the second month he tendered him $8 rent, but Deisher refused to receive it, and Gehre never, did pay any further rent for the reason last stated.
“12. Deisher commenced an action January 3, 1887, before H. S. Clark, a justice of the peace, to recover possession of said premises against Gehre, of forcible entry and detainer; judgment was rendered for Deisher and against Gehre for possession of said premises January 14, 1887; Gehre attempted to take the case to the district court on error, but on account of irregularity in the proceedings the judgment was affirmed January 24, 1887.
“13. During the time the case was pending and after the affirmance of the judgment in the district court, Gehre desired and offered to remove the building from said premises, but Deisher refused to let him remove it, and he was pre vented from so doing by Deisher; after the decision of the case in the district court, Deisher took forcible possession of said building, and immediately opened a butcher shop in it himself.
“ 14. Gehre has been deprived of the use of said building by Deisher; Deisher continued to occupy said building for a short time, when he sold said building, and has appropriated the money to his own use.
“15. The reasonable value of said building during all of the time since its completion is $125, and it was worth that at the time Deisher took possession thereof; the material in the building for the purpose of taking it off the premises was of the value of $25.
“16. Deisher has never paid Gehre anything for said building, and all of the foregoing facts occurred loDg prior to the expiration of four years from the time Heller made the contract with Deisher.
“17; Gehre acted in good faith at the time he bought from Heller, and Heller acted in good faith at the time he sold to Gehre, and at the time Gehre bought and went into possession of said building he believed he could stay there for the unexpired time of the four years under which Heller was occupying it; at the time Gehre went into said building, Deisher received and treated him the same as he had Heller; and the evidence in this case shows no excuse for Deisher wanting Gehre out, except to start a butcher shop in the same building himself.
“18. Deisher had no talk with Gehre, or in the presence of Gehre, prior to the sale of Heller to Gehre, and the conditions of the lease between Deisher and Heller were not ■ mentioned by Deisher to Gehre, nor by Heller to Gehre in Deisher’s presence.
“19. An execution for the possession of the property and costs mentioned in the bond sued upon in this case was issued on said judgment by the justice of the peace February 25, 1887, and placed in the hands of the constable, and the defendant, Gehre, paid said costs to the constable, but failed and neglected to give up the key to said premises.
“20. The plaintiff, Deisher, purchased a new lock for the door of said building, at an expense of $1.25, to replace lock broken by plaintiff in making entry of the building.
“21. November 10, 1886, the plaintiff served upon the defendant the following notice, to wit:
“‘A. Gehre: You are hereby notified to quit the following premises, to wit: The east 8 by 30 feet of lot 170, on Eighth avenue east, in the city of Topeka, Kansas, now held by you as my tenant thereof, thirty (30) days herefrom. Nov. 10, 1886. J. R. Deisheb.’
“22. December 29, 1886, the plaintiff served upon the defendant the following notice, to wit:
“‘To A. Gehre: You are hereby notified and required to forthwith leave the premises hereinafter described, to wit: The 8 by 30 feet of the southeast corner of lot No. 170, on East Eighth street, in the city of Topeka, Shawnee county, Kansas, for the possession of which premises an action is about to be brought by me. Dec. 29, 1886.
J. R. Deisheb.’”
conclusions OF law.
“1. The plaintiff, J. R. Deisher, is entitled to recover from the defendant, Adam Gehre, on account of the bond sued on for rent, double the rental value of said rent as described in conclusion of fact No. 4, to wit, $24.
“2. Inasmuch as the action for forcible entry and detainer commenced before the justice of the peace by plaintiff against defendant, as described in conclusion of fact No. 12, did not determine or settle any controversy between the parties, except the right of possession, and the building situated on said premises was personal property, the plaintiff is liable to the defendant, Adam Gehre, for the value of said building standing on the premises, to wit, $125, and the amount found due to plaintiff on account of rent from Adam Gehre, to wit, $24, be deducted from said sum of $125, and the defendant, Adam Gehre, should have judgment against plaintiff for the balance, to wit, $101.
“3. The plaintiff is not entitled to recover against the defendant on account of attorney’s fee for legal services described in conclusion of fact No. 7.
“4. Inasmuch as the plaintiff broke the lock in making an entry of the building, he is not entitled to recover from the defendant for the lock described in conclusion of fact No. 20.”
A motion for a new trial was made and overruled, and the case is properly here for review.
I. The first complaint made by the plaintiff in error is that the evidence and finding of the court that this plaintiff in error had taken possession of a building belonging to the defendant in error and converted the same to his own use, is neither a counterclaim nor a set-off under the code, and ought not to have been proved or allowed; that it did not arise out of the contract sued on, nor was it connected with the subject of the action, and it was not therefore a counterclaim, and it did not arise out of a contract, and it was not therefore a set-off. It is every-day law that when the property of one person is taken possession of and converted to the use of another, the tort can be waived, and an action brought on the implied promise ; and while we believe in this particular case that the value of the property belonging to Gehre is a counterclaim, he, relying on the promise implied by the possession and use, might recover if he had brought an independent action; hence we do not deem this to be a reversible error.
II. The next objection is based upon the theory that the judgment in the action for forcible entry and detention is a final determination that the plaintiff in error was entitled to the possession of the lot and building, and that therefore all the evidence and findings of the court of the circumstances under which the building was placed upon the lot were immaterial and irrelevant. We do not understand that the action of forcible entry and detainer is a bar to this defense or counterclaim. Section 106 of the justices’ code does not seem to contemplate such a result, and the case of Waite v. Teeters, 36 Kas. 604, does not seem to warrant any such conclusion.
III. The last contention of the plaintiff in error is, that if the court is of the opinion that Gehre could waive the tort and use it as a set-off on the theory of an implied contract, then the measure of his claim was not the value of the building where it was, for Gehre had no right to keep it there, but the value of the building taken away, and under the evidence and finding this was $25. This will not do; the court finds that the building was placed on the lot by Heller, under contract with Deisher for four years, and at the expiration of that time, or at any time when Heller wanted to quit the business, Deisher was to pay Heller the actual cost of the building. Gehre, by purchase from Heller, with the acquiescence and recognition of Deisher, succeeded to the rights of Heller. He was entitled to the possession of the unexpired term of Heller — over three years — and actual cost. Deisher would not let Gehre remove the building. It was not removed; it remained in the possession of Deisher, and was in his daily use, and Gehre was entitled to its value as it stood on the lot at the time of trial.
IV. The plaintiff in error was not entitled to recover the value of the services of his attorney in the trial of the forcible entry and detainer, either in the justice’s or the district court. It is not so nominated in the bond, and we are not cited to any authority allowing it.
Believing that substantial justice has been done on the facts presented in the record, 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 is an original action in this court. The petition alleges that the plaintiff, G. L. Calvert, is and was a resident of Itasca township, in Sherman county, on the 1st day of November, 1889; that at the regular election in November, 1889, the plaintiff and the defendant were candidates for the office of justice of the peace in and for said township; that the defendant, Charles W. Whitmore, received 159 votes, and that the plaintiff received 157 votes, and, in addition to the 157 perfect ballots that were cast for the plaintiff, the following imperfect votes were cast: One for Calvert, one for A. L. Calvert, and one for J. C. Calvert. He further alleges that the three ballots cast, bearing respectively the names of “Calvert,” “A. L. Calvert,” and “J. C. Calvert,” were meant and intended by the voters so casting them for this plaintiff, G. L. Calvert, and in truth and in fact were so voted for plaintiff for said office; that in erasing the name of Charles W. Whitmore and writing instead thereof the. name of the plaintiff on said ballots, the persons preparing the same meant and intended to write on each of said ballots the name of G. L. Calvert, but by mistake wrote the names as aforesaid; that prior to said election, the electors of said township met in mass convention and nominated as candidates for jus tice of the peace, W. K. Brown, Charles W. Whitmore and this plaintiff, G. L. Calvert, and that these three persons were the only candidates for said office at said election; that, at the time of the election,, this plaintiff had an office in the town of Goodland, in said township; that no person bearing the name of A. L. Calvert or J. C. Calvert resided in said township; that the only other person residing in said township bearing the name of Calvert was a farmer residing on a claim in the most remote corner of the township, and who was not a candidate, and who was entirely unknown to the great body of the electors of said township; and that the names of the electors casting the three ballots above named are known to the plaintiff, and are ready and willing to testify that said ballots bearing the names of “Calvert,” “A. L. Calvert,” and “J. C. Calvert,” were so prepared and voted by mistake, but were in fact cast for the plaintiff for justice of the peace. He then alleges the canvass of the vote, the issuance of a certificate of election to defendant; that the plaintiff filed his oath of office and offered an official bond for approval, ■demanded the possession of the office, etc.
To this petition a demurrer is interposed because it does not state a cause of action. We think the petition contains every necessary allegation to state a good cause of action on the part of the plaintiff, and therefore recommend that the demurrer be overruled, and the defendant allowed thirty days to answer.
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.:
Joseph Myer asks a reversal of a judgment for $74, rendered against him and in favor of A. T. Moon, in the district court of Einney county. One ground for the reversal is that the petition did not state a cause of action. In substance, the allegations of the petition were that on August 19, 1886, Myer, who was in the ice business in Garden City, agreed to turn over his business to Moon, together with the benefits of a contract which Myer had with Olin Brothers, of Pueblo, Colorado, to furnish ice to him in Garden City at a certain price, and the ice was to be ordered and purchased from Olin Brothers in the name of Myer. In pursuance of this agreement, on August 20, 1886, a car-load of ice was ordered from Olin Brothers in the name of Myer, which was received by Moon, when Myer represented that Olin Brothers were indebted to him for the amount of the bill for that carload, and that he would settle with Olin Brothers for the same, and would do so immediately, in order to preserve credit under the contract with them so that the ice could be promptly procured from them when ordered. Moon, relying on the truth of these statements, paid Myer the amount due for the ice; but he alleges that the statements of Myer that Olin Brothers were indebted to him were untrue; that Myer did not pay or settle with them for the ice, as he agreed to do; and that by reason of his failure to settle with them for the ice, Olin Brothers refused to ship ice to Moon when ordered by him in the name of Myer, and disposed of the ice, which they intended to supply under their contract with Myer, to other parties; and that thereby Moon was 'unable to procure ice under the contract; and that, by reason of the conduct of Myer, Moon has been damaged in the sum of $500.
We think the demurrer to the petition was properly overruled. The contract between the parties is valid and appears to be based upon sufficient consideration. Moon agreed to pay to Myer the sum of $25, and also to furnish to Myer 5,000 or 6,000 pounds of ice at the net cost of the same at Garden City. Although the petition is not as elaborate as it might have been, it states a valid agreement, a breach of the same by Myer, and that his non-compliance and wrongful conduct resulted to the damage of Moon. It may be that the allegations of the petition are not sufficiently specific, but if this defect exists it should be corrected by motion, and not by demurrer. (Stringfellow v. Alderson, 12 Kas. 112.)
The motion to require defendant in error to elect on which cause of action he would proceed to trial was properly overruled, as only a single cause of action was stated.
In charging the jury, the court, instead of reciting at length the contract alleged to have been violated, and the misrepresentation alleged to have been made, referred the jury to the petition, and indicated those portions of the petition where the contract and misrepresentations might be found by pencil marks, and permitted the jury to take the petition to the jury- room with them. The practice of referring the jury to the pleadings in. order to determine in whole or in part the issues of the case is not to be commended. It is the province of the court to determine the issues and state them to the jury, and not leave them to ascertain the effect of the pleadings or the issues which they present. In this case, however, the issues were stated by the court, and the jury were only referred to the petition to ascertain the terms of the contract, which were not disputed, and the misrepresentations which it was alleged had been made by Myer. The construction of the pleadings or the determination of what the issues were were not left to the jury, and no prejudice could have resulted from the action of the court.
It is contended that the charge of the court was incorrect in several particulars, but the exceptions were not such as to require an examination of the questions suggested. The charge contains several propositions, but only a general exception was taken at the end of the instructions. The charge appears to be correct in its general scope, and hence a general exception is unavailing. (Fullenwider v. Ewing, 25 Kas. 69, and cases cited.)
The sufficiency of the testimony is also challenged, but there is enough to sustain a verdict which has received the approval of the trial court.
Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
By the provisions of chapter 157, Laws of 1887, the salary of the county treasurer of Norton county is fixed at $1,200 per annum. In April, 1889, Francis M. Snow, the county treasurer of that county, under the claim that said chapter 157 had been repealed by chapter 138, Laws of 1889, received from the county salary in excess of that allowed by the act of 1887. This was an action in the court below by the board of county commissioners of Norton county to recover from Snow, the county treasurer, the sum of $100, alleged to have been illegally received by. him as salary. No brief has been filed on the part of the county treasurer, but it seems from the record that the trial court decided that chapter 157 had been repealed, and therefore is no longer of any force.
The title of said chapter 157 is as follows: “An act to regulate the salaries of county clerk and county treasurer in Norton county, and to repeal chapter one hundred and thirteen of the Session Laws of 1877, entitled (An act to regulate the salaries of county clerk and county treasurer in certain counties therein named/ ” The title of said chapter 138, Laws of 1889, is: “An act regulating the fees and salaries of the county treasurer, county clerk, county attorney, probate judge and register of deeds of Dickinson county, Kansas, and to repeal chapter 157 of the Session Laws of 1887.” Section 7 of said chapter 138 reads: “That chapter 157 of Session Laws of 1887 be and the same is hereby repealed.”
We think that said §7, of said»chapter 138, is unconstitutional and therefore void, under § 16, article 2, of the constitution of the state, which ordains that “No bill shall contain more than one subject, which shall be clearly expressed in its title.” Norton county is not named in the title or the body of said chapter 138, and the ordinary impression one would receive from reading the provisions of said chapter 138 is, that said § 7 of said chapter repeals some act affecting the fees and salaries of the county officials of Dickinson county, not Norton county, or any other county. Nothing relating to Norton county is clearly expressed in the title.
Again, two subjects are contained in said chapter 138. The title does not refer to Norton county, and the body of the act does not purport to fix the fees for the county officials of Norton county, but § 7, of said chapter 138, repeals chapter 157 of the Laws of 1887, and, therefore, is a wholly different matter from fixing the salaries of the county officials of Dickinson county.
The judgment of the district court will be reversed, and the cause remanded with directions to the court to overrule the demurrer and proceed with the case.
All the Justices concurring.
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Opinion by
StraNG, C.:
Appeal from the report of commissioners assessing damages for land taken by the plaintiff for a right-of-way. Amount of damages assessed, $32,760. Trial had on the appeal in the district court, before a jury, March 29, 1888, resulting in a verdict and judgment for the appellants in the sum of $49,101.93. The plaintiff presented a motion for a new trial, which was overruled, and it brings the case to this court, and alleges that several errors occurred in the trial of the case below, for.which it should be reversed.
The first error complained of is the admission of the following evidence of the witnesses Thomas Orr and E. W. Anderson. Thomas Orr was asked the following question: “ What was property down there on Eleventh and Kansas avenue, and from there out to Twelfth and back to Tenth — what was that worth?” Answer: “Worth just as much as it is now.” By Mr. Hutchings: “Wait; we object to the question upon the ground it is not the property in controversy; those are town lots, situated upon streets, while the property in controversy is unoccupied land; it is irrelevant to the inquiry here.” By the court: “The question asked the witness is as to what this land on the corner of Eleventh and Kansas avenue was worth last fall, and he may answer that question by stating what he thinks it was worth at that time.” (To which ruling of the court the defendant duly excepted.) A. “I considered it worth just as much tked as it is now.” Q,. “What is it worth now?” (Objected to by the defendant; same as last objection. Objection overruled by the court. Defendant duly excepted.) A. “I paid at the rate of $5,500 an acre, without improvements.” By Mr. Hutchings: “We object to that.” By the court: “This last answer is stricken out.” Q,. “State what, in your opinion, it was worth at that time. Never mind what you paid; just give an opinion what land along there was worth.” By Mr. Hutchings: “We object to the question as to what property on Kansas avenue or Eleventh street was worth .last fall, or any other time, because it is irrelevant; it is not the property in controversy, nor situated in the same manner.” (Objection overruled by the court. Defendant duly excepted.) A. “ What is the question now?” Q,. “ What was the property along Kansas avenue, there along Tenth or Twelfth streets, worth last fall?” A. “Not what I paid now?” Q,. “No, not of any special piece; but what would you generally regard it worth an acre or as acre property?” (Objected to by defendant, same as last objection made, and for the additional reason that the question does not call for the market value. Objection overruled by the court. Defendant duly excepted.) Q,. “Tell-us the market value of it last fall, in your opinion.” A. “ I think about two hundred dollars a foot.” By Mr. Hutchings: “We move to strike out that testimony, upon the ground it is irrelevant to any inquiry involved in this case.” ( Motion overruled by the court. Defendant duly excepted.)
E. W. Anderson was asked the following question: “ What was the market value of property along Kansas avenue, at that point, last fall, during October and November, immediately south of the Splitlog tract?” (Objected to by defendant’s counsel, because no sufficient foundation has been laid for the question, and is incompetent, irrelevant, and immaterial. Objection overruled by the court. Defendant duly excepted.) A. “ It was worth, at the corner of Sixteenth and Kansas avenue, a hundred dollars a foot — is what it sold for.” By Mr. Hutchings: “We move to strike that out as irrelevant and immaterial, and not responsive to the question.” (Motion overruled by the court. Defendant duly excepted.)
The objection to this evidence is that it does not relate to the land in controversy, which is unoccupied land, but relates to town lots situate upon streets, and surrounded by improvements, and is therefore irrelevant. This objection goes to the competency of the evidence. While there is a want of harmony in the authorities, we think the weight of authority bolds that where expert witnesses are called to testify as to values in damage cases, or where, under the exception to the general rule that none but experts may give opinions, non-expert witnesses, familiar with the subject of the controversy, are permitted to give opinions as to values, such evidence— that is, such opinions as to value — should be confined to the market value of the property in controversy in all cases where witnesses can be obtained who are familiar therewith. In the case at bar, it matters not, however, whether we are confined to such rule, or go further and permit witnesses to give their opinions of the market value of other property of like kind, similarly situated, as under either rule the evidence complained of under the first assignment of error should have been excluded. The witness was not asked to give his opinion of the market value of the land in controversy, nor was his opinion sought in relation, to the market value of like property, similarly situated. He was asked, “What was property along Kansas avenue, there along Tenth or Twelfth streets, worth last fall?” This property, thus inquired about, consisted of lots on the most important business street in the city of Armourdale, surrounded by or adjacent to lots with buildings and other improvements thereon, while the land appropriated by the plaintiff was a part of a tract of farming land, in use as such when condemned and taken by the railroad company. It had never been platted into blocks or lots as a part of any city, nor was it adjacent to any land which had been so platted, but was bounded on the north by the Union Pacific railroad; on the west by Twentieth street; on the east by Sixteenth street; and on the south, the side nearest to Kansas avenue, by unplatted lands of Mary Orr and the Kaw Valley T. S. and B. Co. This land, and the lots, the value of which was proved by the witnesses, are entirely dissimilar. They are unlike in location. The lots are on a business street in the city, while the land appropriated is from 600 to 800 feet back of said street, and separated therefrom by two other tracts of land of like character, owned by other persons, neither of which is yet platted as an addition to the city. The property on Kansas avenue is business lots, while the land in controversy, if platted’, would be at least two streets back of said avenue, and would not be available for business lots in a long time, if ever. The value of a lot on the principal business street of a city furnishes no criterion for estimating the value of a lot of like size on another street, even one block away from such business center, and much less for the value of farming land, not yet platted as a part of the city, and cut off from the city by other lands not yet platted. The evidence complained of in this assignment is so palpably erroneous that we do not care to pursue the subject further. In a city like Armourdale, where real-estate agents, and dealers in real estate on their own account, are not scarce, it would seem that no difficulty should be experienced in finding witnesses who could testify as to the value of the property in controversy, and thus beep within the rule.
The plaintiff objected to the following evidence of Thomas Orr: Q. “How many feet are there in a lot?” (Objected to by the defendant as immaterial and irrelevant. Objection overruled by the court. Defendant duly excepted.) A. “Lots in the locality of these corners are generally twenty-two feet five and six inches wide, while inside lots are twenty-five feet front.” Q,. “About how many lots does that give to the acre?” (Objected to as immaterial and irrelevant. Objection overruled by the court. Defendant duly excepted.) A. “The corner lots would make eleven to the acre, while the twenty-five feet would be ten lots to the acre.” Q,. “That would be at the rate of'$5,000 a lot, then?” (Objected to by the defendant’s counsel on grounds last stated. Objection overruled by the court. Defendant duly excepted.) A. “Yes, sir.”
In cases like this, where damages are limited to the value of the land appropriated, the proper inquiry is, What was the market value of such land, for any present use, in the condition in which it was immediately prior to its condemnation by the company? Witnesses testifying as to the value of such land may consider any use to which the ground may be pres ently put, in forming their opinions as to its value; and its surroundings may be shown to the jury — its nearness to, or distance from, a town, village, or city, or other improvements that tend to affect its value; but the jury are to value the land as a whole, in the condition in which it was when taken. They have nothing to do with its subdivision into lots or blocks. They may consider its location, and the effect its location has upon its value as a whole; but the evidence as to how many lots it would make, and what they would sell for after the subdivision, is wholly improper. If an illustration was wanted to show the impropriety of such evidence, we do not know where we could find a stronger, or more apt one, than the evidence this witness furnishes. The witness is asked the size of lots on Kansas avenue, the value of such lots, and how many such lots an acre would make, and then it drops out that an acre of such lots is worth $55,000 without improvements; that the witness paid at that rate per acre. Such evidence is certainly highly improper. It furnishes no proper measure of value, so far as the land appropriated is concerned, with which alone the jury has to do, and is well calculated to mislead the jury by furnishing a false and fanciful measure of damages. Without going further into this record, for the reasons given m connection with these, the first and third assignments, it is recommended that the judgment of the district court be reversed, and the case remanded for new trial.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
SimpsoN, C.:
The material facts are, that one M. A. ‘Neff was a merchant possessing a stock of merchandise at Lucas, Russell county, Kansas; that on the 21st day of January, 1888, the defendant in error, as sheriff of that county, levied upon and took possession of such stock of goods by virtue of several writs of attachment against Neff. The plaintiff in error at once replevied the goods, claiming that he had purchased the same in good faith and for a valuable consideration, before the levy of the attachments. His claim is, that one J. W. Huff, president of the Bank of Downs, had a chattel mortgage for $2,400, that was the first lien on said goods; that Huff had taken possession of the goods under and by virtue of the terms of his chattel mortgage, and that he had purchased from Huff. Neff was indebted to various non-resident wholesale merchants in a large sum. The value of the stock of merchandise when Huff took possession was about $3,000. At the April term, 1888, the case was tried by a jury, and answers to special interrogatories and a verdict returned as follows:
“FINDINGS OF FACT.
“Q,: 1. Did the plaintiff Meibergen, at the date of the purchase of the stock of goods in question, know of any indebtedness of M. A. Neff, to either Schuster, Hingston & Co., R. L. McDonald & Co., Donald Bros., Kirkendall, Jones & Co., Julius Kuhn, or Englehart, Winning & Co.? A. Yes.
“Q,. 2. If question No. 1 is answered in the affirmative, state to which of the above-named parties said Meibergen knew said M. A. Neff was indebted at the time of his said purchase? A. Julius Kuhn.
“Q. 3. What was the actual value of the said stock of goods in question at the time plaintiff Meibergen bought the same of Huff— $3,000? - A. $3,000.
“Q. 4. Did Neff transfer the goods to Huff for the purpose of hindering, delaying, or defrauding his creditors? A. Yes.
“Q,. 5. Did Meibergen, when he purchased said goods, know of the fraudulent intent of Neff? A. Yes.
“Q,. 6. Were the facts and circumstances surrounding Mei-bergen, when he purchased said goods, sufficient to put a reasonably prudent man upon inquiry as to Neff’s fraudulent intent? A. Yes.
“ Q,. 7. Did Meibergen, at the time he purchased these goods, know whether Neff was in debt to anybody except small debts in town? A. Yes.
“Q. 8. Did Meibergen, when he purchased these goods, know of sufficient facts and circumstances to put a reasonably prudent man upon inquiry as to whether Neff was in debt to any person except small debts in town? A. Yes.”
The jury found that, at the commencement of the action, the defendant was entitled to the possession of the goods in controversy, that the actual value thereof was $3,000, and that the value of the special ownership by the defendant therein was $2,269.39. A motion for a new trial was made and overruled, and judgment rendered according to the verdict. The case has been brought here for review. Two principal questions are discussed by counsel for the plaintiff in error.
I. The first is that the special findings of the jury are not supported by the evidence. The stock of merchandise, which is the subject-matter of this litigation, had been owned by Neff for some months at Lucas, but before that time he had been located at Delhi, and prior to his residence at Delhi he had lived at Downs, where J. W. Huff and the plaintiff in error reside, and where the bank of which Huff is president is located. Huff claims that he loaned Neff money to the amount of $2,800, between October 1, 1887, and December 8, 1887. The only written evidence about this indebtedness is a chattel mortgage given by Neff to Huff on the 15uh of January, 1888. This mortgage recites that it was given to secure one note dated October 10, 1887, for $300, one note dated November 2, 1887, for $300, one note dated November 15, 1887, for $1,000, one note dated November 28, 1887, for $500, and one note dated December 8,1887, for $700. Huff claims that he never loaned Neff any money until after Neff moved to Lucas; that he loaned the money on the personal note of Neff, and did not take or demand security. Huff also swore that all these loans were made to Neff at Downs, and that on each of these occasions he paid Neff in currency, did not check it out of the bank, and there is no check or record in the bank, or in his private books or papers, showing these payments to Neff. A witness testified that he had a talk with Huff at Downs, on or about the 15th day of December, in which he asked Huff about the financial standing of Neff; was told by Huff that he knew nothing about it, as Neff did his business at the other bank, meaning the First National Bank of Downs. This was after Huff had loaned Neff money, as he claims.
Huff aud the plaintiff in error went to Lucas on the 17th day of December, stayed with Neff all day, and told the landlord of the hotel at which they stopped that they were traveling salesmen from Chicago. On January 13, Huff went to Lucas, and after being there a day or two telegraphed to plaintiff in error to come. Meibergen went to Lucas, and was informed that Huff was taking a chattel mortgage, and he wanted the plaintiff in error to help invoice the goods, he be ing a merchant of large experience, while Huff had no knowledge of such goods. The invoice was completed, a chattel mortgage executed by Neff to Huff, that is witnessed by plaintiff in error, and then Huff took possession and sold at a loss of several hundred dollars to plaintiff in error, who sent for his son and put him in charge. There is some evidence tending to show that at the time Huff claims to have loaned Neff money at Downs, Neff was not away from home, and that at one of the dates fixed by Huff, at which he had personally delivered the money to Neff'at Downs, he (Huff) was absent attending court at Mankato. There is some direct and much circumstantial evidence tending to show that the plaintiff in error knew that Neff had many creditors, was practically insolvent, and unable to pay his debts at the time he purchased the stock of goods from Huff. Indeed, there is abundant evidence tending to sustain the special finding of the jury, and to support the general verdict. Of course, it is largely circumstantial, as the common experience of the profession is, that direct proof of commercial fraud is hardly ever produced either before a court or a jury. Huff’s dealing with Neff was not conducted with ordinary business prudence. His loans to Neff of large sums of money, the loans following each other so speedily, without security or a demand for security, is not in accordance with business methods. No explanation is offered as to how the proceeds of the loan were disposed of. The knowledge of the loans is confined to Huff alone, so far as the record discloses. He claimed to have been making these loans on individual account, and carried about his person large sums of money with which to accommodate Neff whenever he called upon him. These, probably, are some of the many considerations that controlled the verdict of the jury and operated on the mind of the court, and they appear to us such strong and natural inferences from the special acts and general conduct of the parties, that we deem these and other established facts sufficient to sustain both the special findings and the general verdict.
II. The next cause for reversal urged is, that the trial court erred in giving to the jury the following instruction, No. 13:
“That if you find from the evidence that Neff sold or pretended to sell the goods in question to J. W. Huff on a pretended or fictitious indebtedness, and that the same was done for the purpose of hindering, delaying or defrauding Neff’s creditors, and that Meibergen knew of such fraudulent intent, and bought with such knowledge, or if you should find from the evidence and surrounding circumstances that Meibergen was in a situation that a reasonably prudent man should or would have known of such fraudulent intent, then Meibergen cannot recover in this action. Meibergen could not blind his eyes to the facts and circumstances which surrounded him, and protect himself by the claim that he had no actual or express knowledge of such fraudulent intent. If facts and circumstances came to the knowledge of Meibergen as should have excited the suspicions of and put a prudent man upon inquiry, and that such inquiry would have led to a discovery of the fraudulent intent of Neff in selling said goods to Huff, the law holds Meibergen to be possessed of all such knowledge in respect to such transaction or fraudulent intent as such inquiry might have developed. And if you find from the evidence that Meibergen bought the goods at a price much less than their actual value, then it is for you to say whether or not this fact, together with the other circumstances which came to the knowledge of Meibergen, as shown by the evidence, were not sufficient to arou-e the suspicions of a reasonably prudent man in his situation, and put him upon inquiry as to why Neff and Huff were selling said goods at a sacrifice.”
’ While this instruction is somewhat verbose, and frequent repetitions of the same principle are indulged in, still, stripped of its verbiage, it contains the essence of the law applicable to the state of facts presented by the record. We cannot reverse this ease for the errors suggested and urged. We are disposed to think that justice has been done, and that there has been no such serious departure from established rules as compels a new trial.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
An alternative writ of mandamus issued from this court on the 30th day of November, 1890, reciting that it was represented to the court that prior to the 25th day of November, 1889, one W. H. Swartz was duly declared elected to the office of county commissioner of the third commissioner district of Stevens county; that on the said 25th day of November, 1889, J. W. Spoon, as contestor, filed with the county clerk of said county a notice of his intention to contest the election of the said W. H. Swartz to said office of county commissioner; that thereupon the said T. B. Nash, as probate judge of said county, selected as associate judges for the trial of said contest, R. H. Chism and Geo. H. Storms, and that they constituted and were the contest court for the trial of said action; that they proceeded with the trial of said case from time to time until the 3d day of March, 1890, when said court rendered a decision in said contest adverse to the said W. H. Swartz, to which decision the said contestee at the time duly excepted; that said con-testee immediately filed with the clerk of said court a motion to vacate said decision and grant him a new trial, which said motion was overruled on the 14th day of March, 1890, to which ruling the contestee duly excepted; that the said con-testee immediately upon the refusal of the court to grant a new trial, presented to the court a bill of exceptions in due and legal form, and requested the court to sign the same as required by law, but that said court refused to settle a bill of exceptions in said court, and adjourned the court sine die; that the said contestee was and is desirous of having a bill of exceptions settled and signed in said case, in order that he may have the same reviewed in the proper court upon a petition in error; that unless the said contest court is required to settle and sign a bill of exceptions in said case, the contestee is without adequate remedy at law, and will suffer great damage and loss. The contest court was commanded to convene at the office of the probate court in said county at the hour of 10 o’clock in the forenoon on the 10th day of November, 1890, and then and there proceed to settle and sign such bill of exceptions as may be tendered by the contestee, or show cause before the court on the 20th day of November, 1890, why performance as herein commanded has been delayed or refused.
To this writ the defendants answered on the 28th day of November, 1890, admitting that on the 14th day of March said Swartz, by his attorney, presented to said contest court a pretended bill of exceptions, and requested them to settle and •sign the same, and that they refused to do so for the following reasons: First, thát said bill of exceptions so presented did not fully and truthfully set forth and recite the matters and things therein contained, and that they called the attention of the attorney presenting, the same to the defects, errors, misstatements and omissions in said pretended bill of exceptions, and suggested wherein said pretended bill of exceptions should be amended to make it speak the truth, and informed the attorney if he would make such amendments as were suggested, that they would sign the bill of exceptions, and that the attorney refused to make the amendments; that afterward, on the same day, the attorney reduced to writing a pretended statement of the corrections and amendments suggested by the court, but attached thereto an instrument in writing, the nature of which was unknown to the court at that time, and asked these defendants to sign the same. Whereupon, the court asked the attorney if he presented that instrument as his bill of exceptions, to which he answered, “It is none of the court’s business, but is mine as attorney for Swartz.” The .said Swartz and his attorney not having made a true bill of exceptions, and refusing to make the amendments suggested, and it being apparent from the insolent and contumacious demeanor of said attorney, that said corrections would not be made, and that Swartz and his attorney did not want a bill of exceptions settled and signed that would speak the truth in reference to said trial, and such court having no other business before it, adjourned sine die. Second, they allege the pendency of another action between the same parties for the same cause of action before the district court within and for the county of Stevens, in the thirty-second judicial district of this state, and that said action was pending at the time of the commencement of this action, and is still pending.
On the issues raised by the alternative writ and the answer, a trial was had before this court on the 7th day of February. The material facts appearing at the trial are: That on the 14th day of March, 1890, the attorney of Swartz appeared before the contest court with a bill of exceptions that was identified on the trial as the one offered, and presented it to the court, and requested them to settle and sign the same. This bill of exceptions consisted of over two hundred pages of written matter, and purported to contain everything connected with said case. Two amendments were suggested by the opposing attorney, and these were immediately inserted in the bill of exceptions. The contest court still persisted in the contention that the bill of exceptions was not a true one, but declined to suggest wherein it was deficient, and refused to make any additional suggestions as to amendments, corrections or omissions of important and material matter. The court stated that they were not compelled to sign any other than a true bill, and finally on that day adjourned sine die. They reconvened on the 10th day of November — the day designated in the alternative writ — and the identified bill of exceptions was again presented to them, with an offer on the part of the attorney who presented it to draft and incorporate into the bill any suggestions, amendments, or corrections, but none were made, and the court refused to sign because it was not a true bill. They made no effort at that time to perfect the bill of exceptions. The bill was then left with them, or their attorney, for examination. Subsequent to this they prepared a statement enumerating the defects and omissions in the bill of exceptions presented, and this statement constituted their answer to an alternative writ of mandamus that had, prior to the commencement of this action, been issued out of the district court of their county, but subsequently withdrawn. This statement of omissions and defects in the bill of exceptions presented was by them introduced as evidence on the trial of this action.
It is made the statutory duty of a court to settle and sign a bill of exceptions; if the bill is not a true one, the court should correct it, or suggest the correction to be made. (Code, §303.) We hold it to have been the plain duty of the contest court in this case, when the bill of exceptions was presented to it, to correctly settle and sign it. If the bill as provided was defective in any respect, the defect should have been remedied then and there. It is a clear legal right belonging. to any party when a case is decided against him to have a bill of exceptions settled and signed by the court, embodying all the pleadings, evidence and rulings; and it amounts to an absolute denial of legal right and of justice for a trial court to arbitrarily refuse to settle a true bill of exceptions. It is true that a trial court is not required to draft a lengthy bill of exceptions, or perform clerical work of moment, but when a bill is prepared that is claimed to embrace the whole proceedings, it is its duty to carefully examine it, and correct it, if need be, so as to make it speak the absolute truth. The power of the trial court to make such alterations, erasures and additions in a prepared bill of exceptions presented for signature, as may be necessary to make it speak the truth, is undoubted, and has been declared by this court. But the trial judge has no right to fold his arms and say that the bill of exceptions is not true, and yet not point out wherein it is defective, and refuse to settle and sign it because it is not true. It is as much a part of the duty of the trial court to settle as it is to sign a bill of exceptions. By settlement, we mean to make it recite the absolute truth as to all of the proceedings in the action. All these things are clear deductions from the statutory command to trial courts to settle and sign bills of exceptions. The trial court cannot by mandamus be compelled to sign a certain bill of exceptions, or any particular bill of exceptions, but when a bill is presented and the court refuses either to settle or sign it, or to suggest amendments, or to require certain parts to be stricken out, it can be compelled by mandamus to settle and sign a bill of exceptions.. This is the prayer and command of the alternative writ in this case.
The objection that any other suit is pending in the district court of Stevens county by the same parties for the same cause'of action, is obviated by showing from the records of said court that all the papers in the action were withdrawn by both parties by leave of the court, and without prejudice.
We recommend that a peremptory writ be issued, the question of costs being reserved for further investigation and future consideration.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
GreeN, C.:
On the 12th day of May, 1887, C. F. Ziegler commenced an action in the district court of Davis (now Geary) county, against L. C. Pfaffenberger, who was a non-resident of the state, and caused an order of attachment to issue. Service was made upon the defendant by publication. The affidavit for the attachment stated that the defendant was a non-resident and had property in Davis county, and that one William J. Dueker, of said county, had moneys and credits and effects in his hands and under his control and was indebted to the defendant. A copy of the order of attachment was delivered to Dueker. On the 19th day of September, 1887, Pfaffenberger entered a special appearance in the district court, and made a motion to dismiss the action commenced by Ziegler and to set aside the service by publication, the order of attachment and garnishee notice, for the following reasons:
“1. The publication failed to show that service of summons could not be made.
“2. The return of the sheriff to the order of attachment did not show that any property had been attached or garnished.
■ “3. No legal notice of attachment or garnishment proceedings had been made, as required by law.”
Upon this motion, the court held that there was sufficient in the record to compel Dueker to answer, as garnishee, touching his indebtedness to Pfaffenberger; to which ruling the defendant excepted. The garnishee answered, and was ordered to retain the money in his hands, until the further order of the court.
On the 11th day of January, 1888, the plaintiff, R. Axman, as the assignee of Pfaffenberger, commenced an action against Dueker, the garnishee, to recover the amount due upon a promissory note executed by Dueker to Pfaffenberger. Upon the application of the defendant, Ziegler was made a defendant, and his interplea set out the attachment proceedings and he claimed a lien upon the money due from the defendant by virtue of such proceedings. The court below found that Ziegler had a lien upon the money sued for in this action, to the' amount of $565.83, and his costs, taxed at $38.05 under the attachment and garnishment proceedings in the case of Ziegler v. Pfaffenberger, and awarded judgment for the plaintiff for the balance due on the note. To this judgment the plaintiff in error excepted and brings the case here for review.
The claim is made that before judgment could have been entered there must have been a finding by the court in the case of Ziegler v. Pfaffenberger, that complete jurisdiction had been acquired, both over the person and the subject-matter of the action, in the manner authorized by law, and that where a garnishee pays a judgment against himself, based upon a judgment without jurisdiction, he is not protected by the judgment against a subsequent action by the principal defendant or other creditor. This statement of the legal proposition may be true, but the only question for our determination in this case is, whether the court acquired jurisdiction over the subject-matter of the suit. The suit instituted by Ziegler was to subject the money owing by Dueker to Pfaffenberger to the payment of his debt; hence, it was a proceeding in rem, and we think there was sufficient evidence in the record to give the court jurisdiction; besides, the defendant in this case made a special appearance for the purpose of contesting the jurisdiction of the court over the very subject-matter of the action and obtained an adverse ruling, and this ruling still stands of record, and is conclusive until reversed or set aside in a direct proceeding, and the plaintiff in error could not attack the proceedings had in that case in the trial of this. (In re Dill, Petitioner, 32 Kas. 691.)
The general rule is, that a garnishee is protected by the order and judgment of the court, notwithstanding error and irregularity in the proceedings, and an order of court that the garnishee pay into court the sum attached, in his hands, cannot be collaterally attacked if the court has jurisdiction and there has been no appeal. (Waples Att. 522; Wilson v. Bonney, 8 Neb. 39; Gray v. Canal Co., 5 Abb. N. Cases, 131.)
Upon the question of adjudication in such proceedings, this court has said:
“ The old rule, that the decision made upon a motion is not res ad/judieata, and does not prevent a reexamination of the question decided in the more regular form of a suit either at law or in equity, no longer obtains in its former strictness. Regard is now had less to the form of the proceedings, and' more to the substance and condition of the decision.” (Hoge v. Norton, 22 Kas. 375; Wilson v. McIntosh, 30 id. 234.)
The judgment of the court should be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
It was urged in support of a rehearing of this ease that the former opinion was in conflict with Cable v. Coates, 36 Kas. 191. Cable v. Coates followed English v. Williamson, 34 Kas. 212. The opinion, however, in the former case failed to state, as it should have done, that September 4, 1881, was Sunday. In the case of English v. Williamson, it was said that —
“Under the statute above quoted, (Civil Code, §722,) when the last day comes on Sunday, that day, as well as the first, shall be excluded, and we suppose our tax laws, as well as all other statutes, were enacted with reference to this rule, and therefore that the rule should govern. Besides, we would also think that such rule should govern upon general principles. If Sunday in such a case is not excluded, the owner of the property would not have the full three years given to him by statute within which to redeem his property from the taxes, while the statutes in express terms give him that time and more than that time.”
As September 4, 1881, was Sunday, the owner of the land in the Cable v. Coates case had all of September 5, 1881, in which to redeem, but the tax deed was issued in that ease at 2 o’clock p. M. of September 5, 1881, and therefore was prematurely issued.
With this explanation, the Cable v. Coates case is in line with the English v. Williamson case, and the opinion hauded down follows both of those cases.
The motion for a rehearing will be overruled.
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The opinion of the court was delivered by
HortoN, C. J.:
Charles W. Condiff, deceased, was, on November 3, 1885, a section foreman on the line of the Kansas City, Fort Scott & Gulf Railroad. He had charge of a crew of five hands working section No. 32, between the villages of Arcadia and Mulberry, in Crawford county. The latter village was the headquarters of the foreman and crew, and the point from which they all started on the day named, on a hand-car, at seven o’clock a. ur., to work on the track at the mouth of the cut where they had been engaged the day before. Besides the six men on the hand-car, there were dinner buckets, water pails, material, torpedoes, spikes, shovels, picks, and other tools. The distance that the party had to go was about five and a half miles, and there was a freight train —No. 33 — south bound, due and behind time to be met. They knew that some place on the line, before arriving at their destination, they would probably meet this train, and on the route they stopped to' listen for the train, not being able to hear it while the hand-car was in motion. The wind was from the south, blowing in the same direction they were going, which made it still more difficult to hear a train approaching them from the north. From the last stop their course, a distance of nine hundred and fifty-four feet, was over a bridge and a long trestle and dump or fill, on which it was not practicable to remove their hand-car and tools without pitching them down where they could not get the hand-car back, if at all, without great labor. From the last stop they proceeded over the bridge, trestle,- and fill with great haste to their place of work, which was at the end of the fill and mouth of the cut, where there was a public roadway across the track. They heard and saw nothing of the train before the start over the bridge. They could make the nine hundred and fifty-four feet in about a minute. At the time they arrived at the crossing or point of work, they saw the train rounding a curve into the cut. This train consisted of an engine, tender, and a large number of empty freight cars. One of the witnesses of plaintiff testified that the hand-car was about ninety feet from the engine when he first saw it. Although he testified afterward that when they arrived at the place for work, he saw the train two hundred and fifty yards (or seven hundred and fifty feet) distant. The engineer testified that when he first saw the hand-car he was distant from it about one hundred and fifty feet, and that he saw it as soon as it came in line of vision; that he could not see it before because of the cut and curves on the line of the railroad. The hand-car was slacking speed at the crossing just as the crew saw the engine. The train was behind time, and was running rapidly on a slight up-grade through the cut. After the parties on the hand-car saw the engine they stopped it as soon as they could. After the hand-car was stopped Condiff gave the engineer of the train a signal to slow up. He then turned round (before this he had been facing the engine) and attempted, with the section men, to take the hand-car off the track. There did not seem time for this to be done, and Condiff told the men with him “to let loose the hand-car.” The men let loose the car, left the track, and were uninjured. Condiff did not make any effort to get off the track. The engine struck the hand-car and injured him so that he died within a few days. When the engine struck the car it went up on the pilot under the head-light, and the tools were scattered along the track.
The plaintiff’s theory is that the freight train was behind time; that it was running faster than the rules of the road permitted, in order to make up lost time; that it could have been stopped on the grade inside of four hundred and fifty-feet; that the front brakeman was riding on the engine, where he had no business, and that the deceased lost his life in trying to save the property of the railroad company and the lives of its employés. The court refused to give the following instructions, which were asked by.the plaintiff:
“1. If from the appearances, the deceased believed that by pushing the hand-car forward and getting it in motion he could avert a wreck of the train and probable loss of life consequent thereon, it was not negligence on his part to make the attempt, even though he believed that he might fail and receive an injury himself.
“2. Under the circumstances in which the deceased was placed, he was justified in using every prudent effort in his power to avert the wreck of the freight train and the loss of life that might result therefrom, and if he so acted and lost his life, he cannot be charged with negligence.
“3. It is not negligence in an employé to risk his life to prevent an accident that might be attended with loss of life to his coemployes and great destruction of his employer’s property.
“4. Exposure of life by an employé to save life, is neither wrongful nor negligent, if attempted within the scope of an employé’s duty.
“5. If from the circumstances it appears to you that the deceased believed he could save the wreck of the train and the probable consequence of loss of life and property, and acted in that direction, and in so acting lost his life, his acts in that regard cannot be considered negligent.”
On the contrary, the court instructed as follows :
“ If C. W. Condiff saw the train time enough before the collision, under the circumstances as detailed in the evidence, to get out of the way and avoid accident, then the failure, if any, to sound the whistle would not make the railroad company liable for his death.
“ If Condiff saw the danger of possible collision before it took place, and could have saved himself by stepping off the track, but did not do so, the plaintiff cannot recover.
“The defendant in this case sets up that Condiff contributed to the injury by his acts and conduct. Now, if you find that the injury happened through his own fault, through his own carelessness or negligence in stepping or getting in front of the engine without using ordinary care or prudence, then he in that way contributed to the injury, and the plaintiff cannot recover in this case.”
The important question, therefore, presented by the record is, whether the court committed material error in refusing the instructions prayed for. Most of the instructions refused, requested the court to charge as a matter of law that the deceased, in refusing to leave the track or hand-car, was not guilty of negligence, if at the time he believed, by pushing the hand-car or getting it in motion, he could avert the wreck of the train and probable loss of life. The instructions refused, stating as a matter of law that the deceased was not guilty of contributory negligence, were improper for three reasons : First, they directed the jury that if the deceased placed himself in the position of danger for the protection of property, he was not negligent; second, they were not limited or qualified by informing the jury that the efforts of the deceased to avert the wreck of the train and probable loss of life must have been so made as to be compatible with a reasonable regard for his own safety; that is, in his efforts to save life, he must not have acted under such circumstances as constituted rashness in the judgment of prudent persons; and, third, whether he acted prudently, under all the circumstances detailed in the evidence, was a matter to be determined by the jury, not the court. The court might very properly have stated to the jury, that they were to decide from all of the circumstances of the case whether the deceased used ordinary care or prudence in not leaving the track, or in getting in front of the engine. It did give an instruction somewhat similar to this.
We are in full accord with the decision announced in Eckert v. Railroad Co., 43 N. Y. 502, and similar cases, that “the law has so high a regard for human life it will _ ° ° n°t impute negligence to an effort to preserve un]ess macle under circumstances constituting rashness in the judgment of prudent persons;” but where a person voluntarily places himself, for the protection of property merely, in a position of danger, we are not prepared to say that he is not negligent. If Condiff was struck by the engine of the train while attempting merely to protect the hand-car or tools from injury, we cannot say that he was free from fault or negligence. So much of one of the instructions which were refused, as stated “that exposure of life by an employé to save life is neither wrongful nor negligent, when attempted within the scope of an employé’s duty,” is a correct statement of the law, if it were qualified by .... ,. ,,. n , n . . the instruction, “it made under such circumstances as not constituting rashness in the judgment of prudent persons.” The instructions refused did not contain this limitation or qualification.
When the exposure is for the purpose of saving human life, it is for the jury to say, from all the circumstances of the casej whether the conduct of the person injured is to be deemed rash and reckless. The court cannot, in such a case, charge as a matter of law that the exposure is not negligence.
A careful reading of the evidence preserved in the record fails to convince us that sufficient was introduced to render a refusal of the instructions prayed for so erroneous as to reverse the judgment. Two of the persons who were upon the handcar with Condiff at the time it was stopped testified upon the trial as witnesses for the plaintiff. One of these, William Preston, among other things, testified as follows:
“Q,. Did Mr. Condiff, after last looking back at the engine, make any effort to get off the track ? A. He did not, to the best of my knowledge. He seemed to be excited some way or other. His intention was to move the hand-car to prevent a wreck, I suppose.
“Q. What effort, if any, did his noticing the engine and his position at that time seem to have upon him ? A. It did not seem to have any effect on him; he seemed to be dumb struck at that time, and did not seem to realize what he was doing.”
The other one, George A. Fisher, testified, among other things, that—
“Q,. ITow fast was the train going when you first saw it? A. About twenty-five miles per hour, to the best of my judgment.
“ Q. What did Condiff do with reference to checking the train when he first saw it, if anything? A. He didn’t do anything when he first saw it, until the hand-car was stopped; then he gave the engineer signal to slow up.
“Q,. What did he do then? A. He turned around, he had been facing the engine before, and attempted to take the handcar and tools off the track.
“Q,. Describe fully the situation at the time he was injured and just prior thereto? A. Well, I can’t describe his position just immediately before. I had to look out for myself. When the damage was done, I was on one side of the train and he was on the other. When I last saw him he had just returned from facing the engine to the hand-car and told us boys Go let loose the hand-car,’ and that was the last I saw of him till the damage was done. I could not swear to his taking hold of the hand-car, for I did not see him. We were trying to get the hand-car off the track. When he first got off, he signaled the engineer to slow up, then told the boys to let loose the hand-car, then we got away — left the track entirely.
“Q. Was the hand-car moving from the engine at the time it was struck? A. I could not answer that because I was not looking, I was looking the other way.
“ Q. Why were you trying to get the hand-car off the track? A. It was company property, and we wanted to save it and to prevent a wreck.
“Q. What effect, if any, did Condiff’s noticing the engine and his position at that time have upon him? A. He seemed to be terribly excited.”
• There was no evidence showing or tending to show that the freight train coming at the rate testified to was liable to be wrecked by striking the hand-car. It did strike the hand-car without materially injuring the train, or anyone on it. The hand-car, when struck, went up on the front of the engine and the tools upon it were scattered. The only per son injured was the deceased. One witness testified that it was the intention of Condiff to move the hand-car to prevent a wreck. Whether he meant the wreck of the hand-car or the wreck of the train, he did not state. Even this evidence was his opinion only. In the excitement under which he was acting, Condiff may have desired to save the handcar, which was in his charge, as also the material and tools upon it.
While we may take judicial notice, considering the speed of the train and the position of the hand-car, when the men, at Condiff’s instance, gave up the attempt to lift the handcar off the track, that a collision between the two was inevitable, we cannot say, with the meager evidence before us, that by the engine striking the hand-car there was imminent danger to the lives of the employés upon the train, or to any one of them. The evidence shows, however, that all the efforts of Condiff to lift or throw the hand-car from the track had ceased, as being impracticable, before he told his men “to let loose the car.” After that, he had the opportunity to leave the track. He did not leave, but remained alone by the hand-car. It is not shown by any evidence that his subsequent attempt to give the hand-car a backward motion, averted or was liable to avert injury to the employés on the freight train, or any one of them. We know that moving the hand-car backward would cause less resistance to the speeding train, but whether this would be of any practical benefit to prevent the train from being thrown off the track by a collision with the hand-car at the rapid rate it was going, we cannot determine, nor could the jury determine, without some evidence. No expert, railroad man or other witness, testified upon this point.
Considering the scantiness of evidence as to the probable or possible effect to the employés on the freight train from a collision with a hand-car, and the failure of the . . - _ . _. , . instructions refused to contain the limitations or qualifications pointed out, we cannot say that error prej.udi- cial to the plaintiff was committed in giving or refusing instructions.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
StjraNG, C.:
Action for damages for failing to deliver a certain telegraphic message. The facts are as follows:
The plaintiff in error was a telegraph company, doing business between St. Joseph, Missouri, and Sabetha, Kansas. The defendants in error were partners, doing business at the latter place, and engaged in shipping hogs. They had purchased of the farmers in the neighborhood of Sabetha a lot of hogs, which they designed shipping to market, either at St. Joseph or Kansas City. The hogs were to be delivered at Sabetha, by the farmers, on the 12th of January, 1885. Prior to that date the defendants had employed one E. P. Roher, a livestock commission merchant, or broker, at St. Joseph, to send them a dispatch from that point on the 12th, informing them of the condition of the hog market at that place on that day. Roher delivered a message containing the desired information, addressed to the defendants at Sabetha, to the plaintiff company at its office in St. Joseph, in time to have reached the defendants so that they might have shipped their hogs to St. Joseph. But the message was never transmitted, or, at least, never delivered to the defendants, although they called for it at the company’s office at Sabetha four times on that day. Not hearing from Roher, and supposing on that account that the market was not good at that point, the defendants shipped their hogs to Kansas City, where they were sold at an average price of $4.20 per hundred. Subsequently the defendants learned that if they had shipped to St. Joseph on that day they would have received $4.30 per hundred for their hogs, and saved the freight from St. Joseph to Kansas City; and that, therefore, they had suffered a loss of ten cents per hundred on the gross weight of their hogs, and the difference in freight between St. Joseph and Kansas City, aggregating $225. Defendants in error claim that this loss was suffered by them because of the negligence of the plaintiff in error, in. failing to transmit and deliver to them at Sabetha the message delivered to it by Roher at St. Joseph. The plaintiff in error denied negligence on the part of the company, and alleged negligence on the part of the defendants in error; which they, in turn, denied in their reply. A change of venue was taken, and the case sent from Nemaha county to Atchison county, where on the 19th day of March, 1888, it was tried by the court without a jury. The court made findings of fact and of law, and entered judgment thereon in favor of the defendants in error for $222.90. The plaintiff in error filed a motion for new trial, which was overruled, and it now comes here with its case-made, alleging numerous errors on the part of the court trying the cause, and asks that the case be reversed.
The first error discussed by the plaintiff in error in its brief, is the action of the court in overruling a motion to suppress a deposition. The grounds of the motion are: First, the deposition has not been duly certified as provided by law; second, the witnesses were not sworn according to law; third, the deposition was not taken, sealed up, and authenticated as provided by law.
We regard the second ground stated in the motion for the suppression of the deposition as a mere elaboration of the first, serving to point out the specific reason why the deposition is not properly certified. We will therefore treat these two grounds as constituting but one reason why the deposition ought to have been suppressed. This question involves a construction of our statute on this subject. Paragraph 4454, General Statutes of 1889, reads as follows:
“The officer taking the deposition shall annex thereto a certificate showing the following facts: That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth; that the deposition was reduced to writing by some proper person, naming him; that the deposition was written and subscribed in the presence of the officer certifying thereto; that the deposition was taken at the time and place specified in the notice.”
This is all the paragraph there is in our statutes relating to the character of the certificate to be annexed to a deposition by the officer taking the same. It will be seen by an examination of this paragraph, that the language of the statute is, that the certificate attached to the deposition by the officer taking it must show “that the witness was first sworn to testify the truth, the whole truth, and nothing but the truth.” The language of the certificate attached to the deposition in this case is, that the witnesses “were by me sworn to testify the whole truth of their knowledge touching the matter in controversy aforesaid.” It is conceded that the certificate attached to the deposition by the officer taking the same must conform substantially to the requirements of the statute. The question on this assignment, then, is, Are the words in the certificate, “sworn to testify the whole truth,” substantially the same as the words “sworn to testify the truth, the whole truth, and nothing but the truth,” contained in the statute? Our first inclination upon examining this case was, to say that, while the language of the certificate is not identical with that of the statute, it is substantially the same. But a more careful and analytical examination of the language of the statute satisfies us that it imports something more than the language of the certificate. To be sworn to testify the truth, the whole , truth, and nothing but the truth, imposes upon the witness an obligation that is not imposed upon him when sworn to testify the whole truth. A witness under examination, being asked if he could tell any more, in response said: “Yes, I could tell a good deal more, but that is all I know.” It seems to us that this question and answer illustrate this case. What is there to prevent a witness who has already told all he knows —that is, the whole truth — from telling more that he does not know, that is, more that is not the truth ? The statutory form requires him to tell nothing but the truth, while the form of the certificate does not obligate him to cease when he has told the whole truth. We therefore think the certificate in the deposition is insufficient. The authorities sustain this view of the ease. In those states having statutes which prescribe the form of the certificate to be annexed thereto by an officer taking a deposition, the great weight of authority requires a strict conformity to the statutory requirements. In the states which have no statute prescribing a form for the certificate, and in which depositions are taken under a commission, or rule of court, greater laxity prevails in relation to the mode of taking and certifying them. In Bacon v. Bacon, 33 Wis. 147, the court says: “Where the statutes prescribe a form of oath to be administered to a witness whose deposition is taken out of the state, that form must be observed, or the deposition will be suppressed.”
In Baxter v. Payne, 1 Pin. 504, Judge Miller, delivering the opinion, says:
“The deposition of William Pyncheon was offered in evidence, which was objected to by the defendant, for the reason that the justice does not certify how the oath was administered to the witness. The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly; and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible. Before a deposition should be allowed to be read in evidence, every requisite of the statute must have been substantially and fully complied with. This deposition was taken at the instance of the plaintiff, for the reason that the witness resided more than thirty miles from the place of trial, in pursuance of a written agreement between the parties, and in their presence. In the commencement and body of the deposition, it is stated that the witness ‘beingduly sworn doth depose and say as follows The certificate of the justice sets forth that the witness ‘was first sworn in the usual manner of taking depositions.’ The statute requires that the deponent shall be sworn to testify the truth, the whole truth, and nothing but the truth. There was error in overruling the objection to the reading of this deposition.”
In Goodhue v. Grant, 1 id. 556, the same court says:
“A deposition cannot be read in evidence unless it plainly and satisfactorily appears from the certificate of the justice that all the requirements of the statute have been fully complied with, and no presumption will be indulged in to supply any defect.”
In pointing out what the certificate must show, the court says:
“It must also state, according to §§ 14 and 16 of the same act, that the deponent was sworn to testify the truth, the whole truth, and nothing but the truth. The legislature intended that every part or requisition of the rule should be equally important and binding; consequently the court cannot relax or change it.”
In House v. Elliott, 6 Ohio St. 498, the objection to the deposition was that the certificate annexed to the deposition did not show that the witness was first sworn. The court says: “ This is a compliance with the form prescribed in Swan’s Statutes of 1841, but does not meet the requirement of the code. There must be a certificate annexed to the deposition, by the officer, that the witness was first sworn.” The court in that case held that, where the caption of the deposition showed that the witness was first sworn, the certificate must be held sufficient, as the caption must be considered a part of the certificate. Although nothing is said about it in the brief in this case, attention may be called to the fact that- the deposition does not, either in the certificate or in the caption thereof, in terms, show that the witnesses were first sworn.
In Maine, the statute requires that a deponent, before giving his deposition, should be sworn to “testify the truth, the whole truth, and nothing but the truth, relating to the cause or matter for which the deposition is to be taken; ” and the court, in Brighton v. Walker, 35 Me. 132, held that “A caption, which certifies that the deponent was first sworn according to law, to the deposition by him subscribed, does not show a compliance with the statute requirement. A recital in the caption that the deponent was sworn ‘ to testify the truth, and nothing but the truth,’ is fatally defective. It should appear that the de ponent was at least sworn according to law; and if it does not so appear, it is fatal.” (Call v. Perkins, 68 Me. 158; Reed v. Boardman, 20 Pick. 441-444, there cited.)
In Lund v. Dawes, 41 Vt. 372, the court says: “It is very clear from the statute above cited, and from the decisions in this state, that the certificate of the authority taking the deposition must show that the person making the deposition made oath to it as prescribed by statute.”
“ In accordance with the decision of this court in Brighton v. Walker, 35 Me. 132, (cited above,) as the certificate of the magistrate does not show that the oath required by statute has been administered, the deposition of Parsons must be regarded as having been improperly admitted. It is to be regretted that a verdict should be set aside for an error of the magistrate, which might have been amended at the trial, but the requirements of the statute cannot be disregarded.” (Parsons v. Huff, 38 Me. 137. See also 15 N. H. 371; Bell v. Morrison, 1 Pet. 351; United States v. Smith, 4 Day, 121; 2 Pet. Dig. 41.)
This case was pending in the trial court during several terms after the motion to suppress the deposition was filed. The deposition • might have been withdrawn, with leave of court, and returned to the officer who took the same, and he might have corrected the form of the certificate if the proper form of oath was really administered by him to the witness. Counsel for the defendants in error refer us to but one case upon this question — The State v. Baldwin, 36 Kas. 1. An examination of that case throws no light upon this question. The question there decided is neither the same nor similar to the one presented here.
The third ground contained in the motion for the suppression of the deposition is, that the deposition was not sealed up and authenticated as required by law. There is nothing in the record showing how the deposition was sealed up and authenticated, and therefore we cannot consider this question.
The second assignment for error is, that the court erred in permitting a copy of the message delivered by Roher to the plaintiff company, for transmission to the defendants, to be read in evidence. The contention is, that no proper foundation had been laid for its introduction. The copy offered was identified as a true copy of the original by Roher, by Lee, and substantially by Keneble, the bookkeeper of the plaintiff company at St. Joseph. The evidence of A. F. Washington, who was manager of the office of the plaintiff company at St. Joseph, Mo., where the dispatch in question was delivered, shows that the original messages are kept in the office where received for six months, and are then sent to Chicago and destroyed. The evidence of Jacob Levin, who succeeded Washington as manager of the plaintiff’s office at St. Joseph, shows that the original message was not in the St. Joseph office, and not under his control; that original messages are kept in the office where received for transmission six months, and are, by the rules of the company, then sent to Chicago and destroyed. It is true he says he did not see the original message in question in this case destroyed. But he says the rules of the company require them to be destroyed to the end of six months after received. The original message in this case was delivered to the company January 12, 1885, and the depositions of Roher and Lee, who identified the copy, and to which said copy was attached as an exhibit, were taken more than fourteen months afterward, We think the foundation for the admission of the copy was sufficiently established, and that the copy was properly admitted in evidence.
The third point made by plaintiff in its brief is, that the court erred in refusing to strike out of the deposition of Valentine W. Emmert his testimony that “the market value of good average 300-pound hogs at St. Joseph, Mo. on the 12th and 13th days respectively of January, 1885, was $4.30 gross.” The argument is that the evidence of the value of the hogs at St. Joseph was too remote, as fixing any basis upon which to determine the amount of damage that the plaintiff had sustained. The defendants lived at Sabetha, Kansas. St. Joseph was the nearest market of any importance, for hogs, to Sabetha. The evidence shows that the defendants designed shipping their hogs there; had made arrangements by which they were to be informed of the condition of the market there; and would have shipped there if the defendant company had done its duty and transmitted the information contained in the message it failed to send to the defendants. And the evidence shows that, if they had shipped to St. Joseph at the time they shipped to Kansas City, they would have received ten cents a hundred more for their hogs than they did receive a(. ansas City, and would have saved the freight from St. Joseph to Kansas City. We think the measure of damages adopted by the trial court the correct one.
The plaintiff in error complains next that Roher was permitted to explain the meaning of the message received in evidence. While the language of the message was such as to be readily understood by one engaged in the shipment of hogs, it was couched in such terms as to render it ambiguous, and to a certain extent unintelligible to persons not engaged in such business. It is therefore entirely o o ^ p , J proper to permit its meaning to be explained to the jury by the person who sent it. The substance of the fifth assignment we think wholly immaterial, and therefore no error could be predicated thereon.
The sixth complaint is, that the defendants, over the objection of the plaintiff, were permitted to prove what the hogs sold for in Kansas City, Missouri, on the 14th of January, 1885. Kansas City, Missouri, is the next nearest hog market to Sabetha after St. Joseph, and the market to which the defendants intended to ship their hogs if they did not ship to St. Joseph, and the market to which they did ship them. The hogs were sold on the market there for the best price they would bring. The admission of this evidence was coupled with evidence showing that on the very day, January 14th, 1885, on which the hogs were sold in Kansas City, they would have brought the price contended for by the defendants, in St. Joseph, Missouri. There can be no question under the evidence, but that if the plaintiff in error had done its duty, and transmitted and delivered the message received by it from Rober to the defendants, they would have shipped their hogs to St. Joseph instead of Kansas City. It is equally certain, under the evidence, that if they had shipped to St. Joseph, and sold in the market either on the 13th or 14th days of January, 1885, they would have received ten cents a hundred more for their hogs than they got for them in the Kansas City market. The defendants, therefore, suffered a loss by shipping to the Kansas City market. Having suffered a loss, how is the amount of that loss to be ascertained? The law provides a measurement for loss or damages in eases of this kind, and resort must be had to the measurement so provided. The only difficulty there is in the matter is in selecting the proper measure by which to gauge the loss or damages. The plaintiff in error claims that the difference in price of the two markets, St. Joseph and Kansas City, is no proper measure of the damages suffered by defendants, and says that they could as well have sold them in the London or San Francisco market, and made the difference in price between either of those markets and St. Joseph the measure of damages. We do not think so. We will not speculate upon what might or might not be the proper measure of damages if the defendants had shipped their hogs to so remote a market as either of those named, but will content ourselves by examining the actual surroundings of the case as disclosed by the evidence, and search for the proper measure of damages in that neighborhood. Looking over the real case in hand, we think the measure of damages approved and adopted by the trial court the simple, natural, and proximate measure for damages in cases of this kind, and therefore the proper measure to have applied in estimating the damages in this case. The shrinkage on the weight of the hogs in transit, and the difference in the price of feed in Kansas City and St. Joseph, in relation to which some evidence was introduced, and of which plaintiff in error complains, was not made a part of the judgment by the court below; hence, no injury to the plaintiff flowed from that evidence.
The plaintiff in error complains that the defendants were permitted to make oral proof of the contents of a written de mand which was served upon the agent of the defendant company. It is alleged that there was no proper foundation laid for the proof so made. The plaintiff in error treats the copy of the written demand delivered to the agent as the original. But the evidence shows that, while a copy of the demand was delivered to the agent, he accepted service, in writing, upon the original, which was kept by the defendant in error serving the same.- This original demand was then sent by the defendants in error to their attorneys, who received it, and had it about their office until it became lost; that they made search for it in their office among their papers where it was kept, could not find it. The court, upon this showing, permitted parol proof of its contents. We see no error in this. We are compelled, however, to recommend a reversal of this case, because of error in overruling the motion to suppress depositions.
By the Court: It is so ordered.
HoutON, C. J., and ValentiNE, J., concurring.
JOHNSTON, J.:
I am satisfied with all the conclusions stated, except the one which holds it to be prejudicial error not to have suppressed the depositions which were read. The statutory requirement in regard to swearing the witnesses should be substantially followed, and the fact of the swearing should be certified to by the officer taking the deposition. The record in this case not only recites that the witnesses were sworn at the beginning of their depositions, but the officer who took them certifies that the deponents were sworn “to testify the whole truth of their knowledge touching the matter in controversy.” While this is not a strict literal compliance with the statute, the deviation is so slight and immaterial that the oath may be regarded as a substantial compliance with that required in the statute. As a substantial compliance is sufficient, I think the depositions were properly admitted in evidence, and further, that the judgment of the district court should be affirmed. (Welborn v. Swain,, 22 Ind. 194.)
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Opinion by
Strang, C.:
This action was brought under the fourth subdivision of ¶ 4669, General Statutes of 1889, and pursuant to the provisions of ¶ 4671 of the same stat utes. The object of the action was to vacate a judgment pending in the court of Shawnee county in favor of this plaintiff, and against this .defendant. The case was tried, as is provided, by the court without a jury, March 3, 1887, resulting in an order vacating temporarily the judgment complained of, allowing the defendant to answer, and again setting the cause for trial. This plaintiff objected to the order of the court vacating the original judgment, and comes here with a-case-made asking this court to review said order. The defendant, by his counsel challenges the right of the plaintiff to have said order reviewed in this court, before the case is disposed of in the court below. His position is that the order complained of is not a final order; nor an order from which error will lie.
The proceeding in this case was not under ¶4405, General Statutes of 1889, for a new trial; nor under any other paragraph of our code providing simply for a new trial; but under the paragraph which relates to the proceedings to reverse, vacate or modify judgments and orders in the courts in which they are rendered.. This paragraph provides for reversing or vacating judgments, first, by a new trial under §310 of the code of civil procedure; and second, by a new trial under § 72 of the code; and also provides, third, for vacating judgments for mistake, neglect or omission of the clerk, or irregularity ’ in obtaining a judgment or order; and fourth, for vacating a judgment obtained by fraud practiced by the successful party in obtaining the judgment or order.
An examination of the statutes satisfies us that the order complained of was not, strictly speaking, the granting of a new trial. It was an order vacating temporarily a judgment had in a case, for the purpose of letting the defendant therein interpose his defense, which he says he was prevented from making by the plaintiff in said cause. It would seem from the character and effect of the order that it was not final. The order simply opens the judgment and lets the defense in. The plaintiff is not required to make his case over again as in a new trial. His case stands, and if the defense fail, his judgment is unaffected by the proceeding. The vacation of the judgment is not absolute, but merely temporary — the lien thereof remaining undisturbed all the while if the defense fail.
Further proceedings must be had, the defense must be heard, before the status of the judgment is finally determined, and until it is determined, there is nothing from which error will lie.
It is therefore recommended that this case 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.:
This was an action to enjoin the collection of taxes levied against the plaintiffs in error for the year 1886, upon a herd of cattle that were kept in Maple Hill township, Wabaunsee county. After the cattle had been listed and assessed by the township assessor, the board of equalization met and increased the valuation of all cattle within the township 15 per cent., except those of the plaintiffs in error, the valuation of which was increased 25 per cent. All the taxes levied on the cattle were tendered by the plaintiffs in error to the county treasurer, except the sum of $34.45, which is claimed to be illegal on account of an unwarranted increase in the valuation by the board of equalization.
The objections to the action of the board are not that it acted without the giving of statutory notice, nor that the valuation placed upon the cattle was unjust or unequal as compared with that placed on other cattle within the county, but they are of a more technical and unsubstantial character. Complaint is made that the proceedings of the board of equalization were recorded in one of the journals of the board of county commissioners, and that the report of the proceedings of the board of equalization on the journal of the board of county commissioners does not create or constitute a record of the board of equalization. And another objection is, that the county commissioners, in equalizing the property of that township, were acting as a board of county commissioners, and not as a board of equalization. The county clerk is made clerk of the board, and is required to keep'a record of the proceedings and orders of that board. He is not required to keep a record in a particular form, nor to record the proceedings in any particular book or journal. The report of the proceedings in the present case was recorded in one of the journals provided by the county, and in a portion of which were kept the proceedings of the board of county commissioners. This fact will not invalidate the action taken by the board of equalization. Possibly it would have been more formal and satisfactory to have kept a separate and independent journal for the proceedings of .the board of equalization, but it is not essential to the legality of its action. It is sufficient if a true and permanent record is made by the clerk of the proceedings of the board, regardless of whether it is transcribed in an independent book or one which is in part devoted to other purposes.
The objection that the commissioners were not organized as a board of equalization at the time the valuation of plaintiff’s property was changed cannot be sustained. In the record of the proceedings it appears that the commissioners convened as a board of equalization on June 7, as required by law, and that they adjourned from day to day until June 15, when they completed the work of equalization and adjourned sine die. It appears from the report of their proceedings that the work of the board was suspended several times between the time of convening and the final adjournment, for the transaction of business as a board of county commissioners; and the record of these matters is also recorded with the proceedings of the board of equalization. Then, again, in the report of the proceedings made by the county clerk, there is some confusion of terms in designating the members of the board. They are referred to as “the board of equalization/’ sometimes as “the board of county commissioners,” and again, simply as “the board.” It is true that the board of equalization and the board of county commissioners are distinct tribunals, with different functions and duties, and the confusion of terms in the report of the county clerk is in this respect informal and irregular; but we think not to the extent of defeating their action in equalizing the property of the township, or the taxes levied upon the valuation which they made. The record showing the equalization complained of is found within what is entitled “Proceedings of the Board of Equalization, Wa-baunsee County,” and, taking the record all together, the change made in the valuation of the cattle in Maple Hill township was manifestly the act of the board of equalization. The records of these tribunals are not always kept with care and precision, and courts are inclined to treat the reports of their proceedings with liberality and indulgence, so far as form and regularity are concerned. In the present case, the board was regularly convened, pursuant to a legal notice, and had complete jurisdiction as such board to change and equalize the values of cattle within the township to the extent which it did. Neither the interruptions in the work as a board of equalization in order to perform some of the functions of a board of county commissioners, nor the fact that the record which was kept of the proceedings of the board of equalization included some of the business done as a board of county-commissioners', could mislead any tax-payer, and we do not think that these, or any of the irregularities mentioned, should destroy the validity of their proceedings.
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
Johnston, J.:
This is an appeal from a conviction of Charles Alten, who was charged in seventeen counts of an information filed against him for selling intoxicating liquors. He was found guilty on seven counts, but the court set aside the conviction as to two of the counts and approved it as to the others. The defendant sold cider to numerous persons, charging them at the rate of 25 cents a bottle, and $ 1 a gallon, for the same. The contention was and is, that the liquor sold was not intoxicating, but a reading of the record discloses-sufficient evidence.to sustain the verdict. One witness says; “It intoxicated us to some extent,” and that he “felt pretty good and boisterous.” Another witness said: “ It kind of livened me up a little, so I could feel it,” and that “ it intoxicated me a little,” and made him feel like singing songs. Another testified: “It made me intoxicated — kind of tipsy.”’ Another stated that it affected him about the same as the drinking of whisky did; and there was- still another who said it made him “ dizzy-headed.” There is considerable more testimony of a like character in the record, and although defendant produced testimony tending to show that the liquor sold was not an intoxicant, we are inclined to think that the weight of evidence is with the state; at any rate, there is sufficient to uphold the verdict that has received the approval of the trial court. (The State v. McLain, 43 Kas. 439.)
A further claim is made as to the action of the court in sustaining the motion for a new trial as to the sixteenth count, and overruling it as to the fifteenth and seventeenth counts. The state was required to elect upon which counts of the information it would stand for trial, and among others elected to stand upon the three counts last named. The evidence upon which the state relied for conviction in these three counts was that of Charles Ryan, W. Stevens, James Mallon and John Mallon. It is claimed that the testimony of these witnesses shows that while all obtained liquor from the defendant, yet that it only constituted a single transaction and sale, and that the court in determining the motion decided that the charge in the sixteenth count was a sale, and that those in the fifteenth and seventeenth counts were not, and in that way usurped the province of the jury in determining the guilt or innocence of the defendant. The objection is not good. The state elected to stand upon the sixteenth count, and there is sufficient evidence to sustain the finding of the jury thereon. It is unnecessary to examine the question of whether there was testimony to sustain the finding upon the fifteenth and seventeenth counts, as the state is not complaining of the rulings made, and the defendant cannot complain of a decision in his favor. The court did not trench upon the functions of the jury, because the jury had already found the defendant guilty upon the sixteenth count, and' the only question to be determined is, whether the jury was justified in finding the verdict of guilty upon that count. This being sufficient, the •conviction must stand.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
By an extension of the boundaries of the city of Kansas City, a part of the territory of School District No. 7 of Wyandotte county was brought within the limits of said city, and on the portion of said school district thus added to the city was situate a school-house belonging to District No. 7. This school - house, known as “Stewart’s School-House,” was built by District No. 7 on an acre of ground conveyed in fee to said district by Sarah Driver on the 26th day of September, 1867. Just how the district was divided by the extension of the city limits, and what portion was left out and what part taken into the city, is not disclosed by the record. Enough is said, however, to show that a large number of school children were left within the original district. After the extension of the city limits the board of education of the city of Kansas City attempted to take possession of and exercise control over said school-house. The director of School District No. 7 resisted these attempts at control of the school-house by the board of education of the city, and this action was commenced by the board of education to restrain the officers of the school district from any interference with the control of the board over the school-house. An order of injunction was issued and served with the summons, but a motion to vacate the order was sustained; and from this ruling the case is brought here for review.
The decision of this case must be controlled by equitable considerations; for while the statutes of the state have made provisions for the disposition of the property of a school district when the same is abolished or discontinued, and when a school district is divided by the county superintendent, or when by his action a part of the territory of a school district is detached and put into another or new district, no express provision is made where a school district is divided by reason of an extension of city limits absorbing a part of it. The case of Curtis v. Board of Education, 43 Kas. 138, is not controlling, because it appears from the record in that case that School District No. 45 conveyed the school-house property by a warranty deed to the board of education of the city of Topeka, in consideration of $400. This, under the statute, the school district was authorized and empowered to do by § 28, subdivision 6 of the school law. The general rule respecting such matters is, that where a part of the territory of a county, township or school district is detached for any purpose, the original municipal corporation still retains its property rights, powers, and privileges, and remains subject to its duty and obligations, unless some express provision to the contrary be made by the act authorizing the separation.
As we have said, there is no provision of the statute that provides for an adjustment of the rights of the board of education and the officers of the school district in a case of this kind. We cannot say, as a matter of law, that the board of education or the city became the owner of the school-house by reason of its being taken into the city by an extension of its limits. There ought to have been some adjustment of property rights between the parties, but as the ease stands we could not reverse the judgment of the court below, except upon the theory that School District No. 7 had been divested of its ownership of the school-house by reason of its absorption by the city by the extension, and this we cannot do. No attempt has been made to adjust the conflicting claims upon an equitable basis. On the record and the facts presented by it, we recommend that the order vacating the temporary injunction be affirmed.
By the Court: It is so ordered.
Horton, C. J., and Johnston, J., concurring.
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Opinion by
Strakg, C.:
Action in ejectment for the recovery of the west half of the northwest quarter and the west half of the southwest qúarter of section 8, in township 3 south, of range 5 east, in Washington county, Kansas. The plaintiff claims the land as patentee of the government. The defendant claims under a sheriff’s deed resting upon a judgment of foreclosure and sale of the land upon a mortgage executed by the plaintiff to one J. Mixell. The question in the case is, Did the court in the foreclosure proceeding by Mixell against the plaintiff herein obtain and have jurisdiction of the person of the defendant in that proceeding? If it did, then the judgment in this case should stand; otherwise it should be reversed. Mixell commenced a suit in the district court of Washington county to foreclose his mortgage against Clark, plaintiff herein. Clark lived in Iowa at the time. Service was had by publication, and was defective. Clark had some correspondence with. J. W. Rector, a lawyer of Washington, Kansas, in relation to the foreclosure proceedings, in consequence of which Rector appeared specially in the case, and had the service set aside. The case was then continued until the next term of court. The defendant herein claims that Rector, when the service was set aside, appeared generally and asked thirty days in which to answer. The plaintiff contests this point, and it becomes the principal question of fact in the case. There was no further attempt to obtain service by publication in said foreclosure proceeding, and if the court in that proceeding got jurisdiction of the defendant therein, Clark, it was by reason of the appearance made for him in the case by J. W. Rector. Trial was had in this case June 21, 1888, by the court without a jury, the court[making the following findings of fact and conclusions of law:
FINDINGS OF FACT.
“1. On the first day of August, 1873, the plaintiff was the owner, by virtue of a patent of that date from the United States to him, of the west half of the northwest quarter and the west half of the southwest quarter of section 8, township 3, range 5, in Washington county, Kansas. Afterward, on the 13th day of August, 1873, he gave to one J. Mixell his promissory note for $250, due in six months, without interest, and to secure the payment of the same of the same date he executed and delivered to Mixell a mortgage on said land.
“2. On May 11, 1875, said Mixell commenced an action in the district court of Washington county, Kansas, to recover the amount of said note, and to foreclose said mortgage. The plaintiff, James D. Clark, was at that time residing in Bedford, Iowa. Service by publication was attempted to be made in said action, but the service was void, and no valid service was ever made on the defendant in that action in any manner.
“3. Before the August term of said court the said Clark was informed of the pendency of said action, and employed J. W. Rector, an attorney of said court, to represent him in said action and procure a delay in the rendition of judgment, without prescribing any particular course of action to be pursued. In pursuance of such authority, J. W. Rector appeared specially at the August term of said court to set aside the service by publication, and at the same term of court, on August 6, 1875, the service was set aside and vacated; and thereupon the said J. W. Rector entered a general appearance in said action for said Clark, and asked and obtained an order of the court allowing him to file an answer in the action in thirty days from that date, and continuing the action until the next term of court. No answer was ever filed in the action, and no further appearance was made by the defendant or any one for him.
“4. At the November term of said court, on November 23, 1875, judgment was rendered by default in favor of J. Mixell against James D. Clark for the amount of said note, with costs, and a foreclosure of said mortgage. The said premises were duly sold at sheriff’s sale under said judgment. The sale was afterward confirmed by said court, and on May 19, 1876, the sheriff executed and delivered to J. Mixell a deed for said premises. Afterward, on June 7, 1876, Jerome Mixell and Maggie, his wife, executed and delivered to one John Benda a warranty deed conveying all of said premises. Afterward, on May 30, 1877, John Benda and Mary, his wife, executed and delivered to the defendant, William Lilliebridge, their warranty deed, conveying to him all of said premises for the consideration of $700, which was a fair and reasonable price for the laud at that time. All of said conveyances were duly recorded in the office of the register of deeds of Washington county, Kansas.
“5. The defendant, William Lilliebridge, since purchasing the land, has grubbed and broken about eighty-five acres of the land and maintained the same in cultivation. He has built and now has on the premises about three-quarters of a mile of wire fence, and has paid all taxes on the premises since he purchased them, amounting in the aggregate to about $350. The premises are now worth from $3,000 to $4,000, and have a rental value of $200 per annum.”
CONCLUSIONS OF LAW.
“The plaintiff was divested of his title to said premises by said judgment, sheriff’s sale, confirmation, and sheriff’s deed, and is not entitled to recover the premises, and the defendant is entitled to judgment for costs.”
Motion to set aside the findings of fact and for new trial, overruled, and judgment entered for the defendant for costs.
A very lengthy brief is filed by the plaintiff in error, whose counsel also made an able oral argument before the commission. The case, however, is quite free from complications, there being but few questions to settle in this court. The first question argued by counsel is, Did J. W. Rector in fact appear for Mr. Clark in the foreclosure proceeding? The court found that he did. This settles the question unless there is a total want of evidence to support the finding. Counsel argue very strenuously that Rector did not appear for Clark in that case. ’ We have examined the evidence with some care, and find, first, that the appearance docket shows an appearance by Rector in his own handwriting; second, the journal entry shows that Rector appeared first specially, and had service by publication set aside, and then that he asked for thirty days to answer, which was allowed him, and the cause continued to the next term; and iastly, Rector testifies that he appeared. It would seem that this was sufficient evidence on which to base a finding that Rector appeared in the foreclosure proceeding for Clark. If it is not, we would not know how and where to look for evidence sufficient to uphold a finding of a trial court.
The plaintiff next contends that if Rector did appear for Clark in the foreclosure proceeding, he did so without authority from Clark, and that his appearance therein could not therefore bind Clark to his prejudice. The court finds that Clark employed Rector to represent him in said action to procure delay in the rendition of judgment, without prescribing any particular course of action to be pursued by him in connection therewith. Plaintiff moved to set aside this finding of the court, because not sustained by the evidence, and now contends that it is not supported by the evidence, and that as the evidence is wholly in writing, in the form of letters, this court should construe them and say whether the evidence therein contained supports the finding of the court. It is conceded that all the authority Rector had to represent Clark was contained in certain letters from Clark to him. Clark first wrote Rector from Bedford, Iowa, May 31,1875, asking Rector to let him (Clark) know whether or not Mixell had foreclosed the mortgage on his land. Rector evidently answered that letter, though the answer does not appear in the record, for on June 12, Clark again wrote Rector, in which he said: “I was not surprised that Mixell had commenced suit.” And after writing a long letter, telling Rector all about the transaction with Mixell, and his own hard luck, and some other matters, he wound up by saying, “Now these are the facts in the case. I wish you to attend to it accordingly. I will send you a retainer as soon as I hear from you again.” It would seem as though the request of Clark in this letter, for Rector to look after the foreclosure proceeding, is broad enough to justify Rector in appearing generally in the case, or in doing anything that an attorney could do legitimately for his client in the case. And if, pursuant to said request, Rector thought it best to appear for Clark and get time to answer in the case, and he did do so, we think the authority was sufficient. Counsel for plaintiff say, however, that Rector did not appear pursuant to the authority contained in the letter last above mentioned, and cite Rector’s letters written to Clark thereafter, on June 21 and July 18, as evidence to sustain their contention. They argue that the letters show that Rector did not accept the employment tendered him in Clark’s letter when he received it, but demanded in his letters of June 21 and July 18 a retainer of $15; and that at the time of his appearance for Clark, August 4, he had not again heard from Clark, and had not received his retainer fee; and that therefore no contract of employment was consummated which authorized Rector to appear for Clark. It is true Rector wrote, saying: “If you want me to attend to the matter for you, send me a retainer of $15.” He did not say, however, that he would not attend to the matter for Clark until he received the $15. Rector had not heard from Clark, after writing him on July 18, up to the time when it became necessary to act in the matter by reason of the fact that the court was in session and the foreclosure case reached for trial. Rector then appeared. Looking back to Clark’s last expression upon the subject, contained in his letter of June 12, Rector concluded he would attend to the matter for Clark, and take his chances of getting his fee when he heard from. Clark. We think he had a right to do that; and having done it, and ap peared, his appearance binds Clark. And to show what he did was in exact accord with Clark’s wishes in relation thereto, we call attention to Clark’s next letter, written five days after Rector had appeared in the foreclosure case, in which Clark says: “ I want you to stave off this case, by all means, and I will send you the retainer certainly in a very few days. . . . Take hold of the case at once and be sure to stave it off.” If this letter had been received by Rector before he appeared, there would be nothing left to hang a doubt upon concerning his right to appear. Being received by Rector immediately after he had appeared, and requesting him to do exactly what he had asked Rector in his last letter to him before this one to do, and exactly what Rector had done, we think Clark is estopped now from denying Rector’s authority to appear for him. Rector having authority to appear for Clark in the proceeding to foreclose the Mixell mortgage, and having done so, the court in that case got jurisdiction over the person of Clark, and the judgment and sale which followed divested him of title in the land in controversy, and the defendant herein, having procured the title derived from the sheriff in that proceeding, has a good title to the land in dispute.
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.:
This was an action of forcible entry and detainer, commenced by John C. Douglass on July 16, 1884, before a justice of the peace of Leavenworth county, against D. R. Anthony, to recover the possession of lots numbers 9, 10 and 11, in block 17, in Leavenworth city proper. The defendant filed an affidavit with the justice of the peace showing that the title to the property in controversy was in dispute, and the justice certified the case to the district court, where two trials were had before the court and a jury, each resulting in a verdict. The first verdict was rendered in September, 1885, and gave one lot to the plaintiff and two lots to the defendant; but both parties being dissatisfied, the verdict was set aside and a new trial granted. The second verdict was rendered April 27, 1886, and gave all the property to the defendant, and judgment was rendered accordingly; and the plaintiff, as plaintiff in error, brings the case to this court for review.
One of the questions litigated in the court below was whether the plaintiff’s cause of action, if he ever had any, was not barred by the two years’ statute of limitations. (Civil Code, § 16, subdiv. 5.) On the last trial, and probably on the first, evidence was introduced showing that the defendant had taken the possession of the property more than two years before the commencement of the action, and the jury on the last trial not only found generally in favor of the defendant and against the plaintiff, but also found specifically that the defendant had taken the possession of the property more than two years before the commencement of the action. The verdict was rendered and the findings made on April 27, 1886, and four days thereafter the defendant filed a motion for a new trial, including various grounds; but as no showing was made that he was unavoidably prevented from filing it sooner, (Civil Code, § 308,) the only ground for the new trial considered by the court was the one of newly-discovered evidence. Upon the hearing of this motion a vast amount of evidence was introduced on both sides, but it was all, so far as it was material, merely cumulative, tending to show on the one side that the defendant had taken the possession of the property prior to July 16, 1882; and on the other side, that he had not taken the possession of the property until after that time. The court overruled the motion, and we cannot now say that such ruling was erroneous. Even if all the evidence that the plaintiff introduced on the hearing of the motion had been introduced on the trial, the verdict of the jury might have been, and perhaps would have been, precisely the same as it was, and for the defendant; and then if it had been sustained by the trial court, as the verdict as rendered was actually sustained by the trial court, after the trial court had heard all the evidence that was introduced on both the trial and the motion, we could not grant a new trial. The plaintiff claims that he was misled and deceived by the manner in which the case was conducted and tried on the part of the defendant; but we do not think that the record discloses anything from which he should have been misled or deceived, and certainly not to an extent that would authorize him to obtain a new trial. What the pleadings were, except the plaintiff’s complaint, is not shown. It would seem, however, from the trial of the case that the principal question involved in the case was this: When did the defendant first take the possession of the property in controversy? Was it more or less than two years before the commencement of this action? Was it before July 16, 1882, or not? On the trial the court stated the question thus: “I suppose the crucial question is, when he (the defendant) took possession, and that depends upon what he did.” What the evidence was on the first trial is not shown, and why the plaintiff did not file his motion for a new trial within three days after the rendering of the verdict, is not shown; and certainly, upon the record as brought to this court, we cannot say that any material error was committed by the trial court.
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
Mason, J.:
In a prosecution under a city ordinance, Carrie Snead was convicted of maintaining a place where intoxicating liquors were sold. She appeals. Her contentions are that there was no evidence to sustain the conviction, and that error was committed in giving and refusing instructions.
The complaint described the place as a two-story frame dwelling house situated upon certain lots in Calkin’s addition to the city of Salina. The transcript of the evidence represents one witness as describing it as located on such lots in “- addition to the city of Salina,” and no other witness gave the name of the addition. The defendant maintains that on this account there was a failure to identify the premises referred to in the testimony with those described in the complaint. The place was sufficiently described in other ways, there was no controversy or doubt about its location, and the omission to give testimony as to the name of the addition was immaterial. (The State v. Reno, 41 Kan. 674, 21 Pac. 803.)
There was evidence to this effect: The defendant’s husband had sold liquor on the premises. He left about two weeks before her arrest. After his departure, men were seen going to and coming from the place. One of them was noticed carrying away something that rattled like bottles. A cab driver was frequently seen to leave a suit case at the house, and to call there and get one. At the time of the arrest there were found on the premises some 55 bottles of beer (eight of them on ice and five or six in cool water), two bottles of whisky, four jugs of wine, and numerous empty bottles. The inference of the defendant’s guilt was not unreasonable..
An instruction was given that the jury might consider the fact that the defendant was the owner of the premises in her own right. This is objected to as assuming matters not proved, inasmuch as there was no evidence on the subject beyond an admission made at the trial in these words: “It is hereby admitted that the title, that is the deed to the home in question, is in the name of Carrie J. Snead.” The objections taken are that the title might be in her name without her owning the property in her own right, and that she might have been the owner at the time of the trial and not at the time of the offense charged. These distinctions are too attenuated to be consistent with a fair interpretation of the stipulation.
An instruction was asked beginning with the words “The plaintiff in this case relies upon circumstantial evidence.” It was given as asked except that the words quoted were changed to “Part of the evidence relied upon by the City to convict is circumstantial,” and complaint is made of the change. We do not regard it as prejudicial.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
Francis M. Black brought this action before a justice of the peace to recover damages from a fire alleged to have been caused by the defendant in the operation of its railway. The. bill of particulars alleged that he was the owner of the land burned over and of the crops destroyed.- At the trial plaintiff obtained leave of court to amend the bill of particulars by adding the name of Susan B. Black as one of the plaintiffs, but the amendment was not written into the bill of particulars. The court thereupon rendered judgment in favor of both plaintiffs for $108 damages, costs, and $10 attorney’s fees. The defendant appealed the case to the district court, the appeal bond reciting a judgment in favor of both plaintiffs. In the district court defendant objected to any evidence on behalf of Susan B. Black on the ground that she was not named as a plaintiff in the summons, and contended that the justice had arbitrarily made her a plaintiff, and therefore defendant was not in court for the purpose of answering an action to which she was a party. The court permitted the pleadings to be amended in accordance with the order made by the justice, and the trial proceeded to judgment in favor of both plaintiffs. If there was no error in these rulings, the judgment must be affirmed.
The defendant' cites the case of St. L. & S. F. Rly. Co. v. McReynolds, 24 Kan. 368, to the effect that the filing of an appeal bond is not such an appearance as will waive defects in a bill of particulars. But in that case there was a fatal defect in the bill of particulars. In the present case a good cause of action was stated before any amendment was made. Section 140 of the code'in express terms authorizes the court to permit such amendments where the claim or defense is not substantially changed.
In Hucklebridge v. Railway Co., 66 Kan. 443, 71 Pac. 814, it was expressly held that in an action for damages the addition of the name of a party plaintiff does not substantially change the claim or defense. Here the claim was for the same damages caused by the same fire alleged to have been set out by the operation of defendant’s railway. The defense was necessarily thesame as it would have been had the action been prosecuted in the name of the original plaintiff. The defendant appealed from the judgment in favor of both plaintiffs, and had the same opportunity to defend the action in the district court upon the amended bill of particulars that it would have had if no amendment had been made.
“The filing of amendatory and supplemental pleadings rests largely within the discretion of the trial court, and, unless there is a clear abuse of that discretion, its ruling will not be reversed.” (Rogers v. Hodgson, 46 Kan. 276, syl. ¶ 1, 26 Pac. 732.)
■ There was no abuse of discretion in the ruling complained of, and the judgment will be affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This proceeding is to review the action . of the probate and district courts of Geary county wherein an allowance was made for attorneys’ fees for services on behalf of the executor in an action to set aside the will of John C. Kennett. (Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36.) It also seeks a review of the allowances made to the executor and other items charged against the estate of the testator. By agreement of parties both controversies were tried together in the district court.
To determine the propriety of these allowances it is necessary to examine the nature of the litigation and the services upon which they were claimed and allowed.
No copy of the will is before us but we gather from the abstract and briefs that, among other matters, it directed that three monuments should- be erected within a year from Kennett’s death, one over his own grave, and the others over the graves of his son and a stepson. Then followed bequests of two town lots to Mrs. Howard Kidd; $500 to Mrs. Ella Cornwell; $1000 to Mrs. Susan Taylor; $1000 to the Kansas Children’s Home Society; and the residue to Camp No. 1704 of the Modern Woodmen of America of-Milford, Kan. Benjamin F. Kennett and Mary E. Kennett, a son and daughter of the testator, were cut off with nominal bequests of five dollars each.
Mary E. Kennett brought suit to set aside the will, charging (1) mental incapacity of the testator, and (2) undue influence exercised over the testator by members of the Woodmen lodge at Milford. The defendants in the will case prevailed in the trial court, but this court modified the judgment, not on either of the main issues of mental incapacity or undue influence but on the sole point that one of the beneficiaries under the will, Camp No. 1704 of the Modern Woodmen, .was without legal capacity to take the bequest. This resulted in a considerable residuary estate descending by operation of law on the son and daughter.
The beneficiaries, other than the Woodmen camp, could ill afford the burden of litigation. The three women who were the recipients of the testator’s bounty were elderly widows who had befriended the decedent and were deserving. The daughter who contested the will had been on bad terms with her father for many years, and it was not surprising that she had been disinherited by the will.
The probate court authorized the executor to employ counsel to maintain the will and allowed $1000 as attorneys’ fees for such services. This allowance was approved by the district court. The executor’s compensation for his services for about three and a half years was fixed by the probate court at $1200. This allowance was reduced by the district court to $700. Both of these items and certain others allowed by the probate court and approved by the district court are the grounds for this appeal.
It is argued by counsel that their client, Mary E. Kennett, won this suit over the will and that these allowances are made at her expense; that she and her brother,are paying the expenses on both sides of a lawsuit in which they were the winners. This is hardly correct. Mary Kennett lost her lawsuit to set aside the will. But she and her brother were fortunate enough to snatch a partial victory from defeat because of the mere circumstance that one bequest of considerable magnitude failed and by law descended to them. We must, therefore, deal with this question from the viewpoint that the executor was successful in maintaining the will.
Now what is the law relating to the power of an executor, with permission of the probate court, to employ attorneys as was done in this case? Counsel for both sides direct' our attention to numerous decisions from other jurisdictions, but let us examine our own statute. Section 3599 of the General Statutes of 1909 in part reads:
“Executors and administrators shall be allowed for their services such reasonable compensation as may be allowed by the court upon due hearing therefor had, at times and upon notice to be fixed by the court; also, necessary attorneys’ fees and other expenses as the court shall deem reasonable and necessarily incurred, to be ascertained upon like hearing.”
In Brown v. Quinton, 80 Kan. 44, 102 Pac. 242, this court held that where attorneys were employed to assist an administrator in the discharge of his trust their claim was against the administrator, but he might bé reimbursed out of the estate for attorneys’ fees necessarily paid out as expenses of administration. The case is not exactly like the one before us, but it shows that proper expenditures for such purposes may be allowed to the administrator.
In Brown v. Quinton, 86 Kan. 658, 122 Pac. 116, which was a sequel to the earlier case, the court said:
“Expenses incident to administration, such as those incurred by the employment of counsel, are ordinarily such as render the administrator primarily liable individually, although in the end he may be reimbursed out of the estate in his hands.” (p. 666.)
In Nelson v. Schoonover, 89 Kan. 779, 132 Pac. 1183, •a contested will was held to be invalid in an action against the executor, but the court decided that the executor should be relieved from personal liability for any costs, and ordered the" costs divided between the executor and the plaintiff who prevailed in the action. Moreover the court noted the fact that as the plaintiff received nearly all of the estate as a result of its decision, the “winner” in effect would have to stand the entire cost of the litigation; and this was entirely in accord with equity in that case.' The court in its opinion said:
“As between the executor, representing the estate, and the plaintiff, the apportionment of costs is only a formal matter, since ultimately the entire burden -falls upon the plaintiff, as all charges against the estate, unless otherwise provided for by him, must be paid out of the proceeds of the sale of land that would otherwise be his. As a matter of form, however, the costs in this court and in the district court will be divided equally between the plaintiff and the executor.” (p. 781.)
A still later case is Singer v. Taylor, 91 Kan. 190, 137 Pac. 931, where attorneys’ fees were allowed to the unsuccessful party out of the estate of the testator. In some respects that case' was much like the one under consideration. A daughter contested the validity of her father’s will on the ground that it was the result of undue influence. She also alleged that a certain provision of the will was ineffectual and that the ineffectual bequest must be divided according to the law of descents and distributions. Although the daughter lost her lawsuit (Singer v. Taylor, 90 Kan. 285, 133 Pac. 841), the court permitted the costs to be taxed against the estate and- allowed reasonable attorneys’ fees to be paid out of the estate for the defeated as well as the successful party.
In view of the foregoing, it is unnecessary to examine the wide range of authorities cited by counsel further than shown in their respective briefs. The employment of attorneys in this case was approved and authorized by the probate court before any expenses of litigation to maintain the will were incurred; and the whole matter was reviewed and approved by the district court. The litigation upon which the executor embarked was successful in every respect except in the matter of one bequest where the beneficiary lacked the legal capacity to receive it. The district court heard the evidence as to the extent of the attorneys’ services, considered their talents and the result of their professional labors, and found their compensation as allowed by the probate court to be reasonable. It does not appear excessive and we see no reason to modify it.
Another error assigned was the allowance of $700 to the executor for his services. The probate court awarded the executor $1200 and this amount was reduced by the district court. The executor’s services extended over three and a half years; the property in his charge amounted to $13,000; the reduced allowance is not large; and an independent determination of its propriety would be the substitution of this court’s judgment for that of the district court on a mere finding of fact. This is seldom done, and it would not be just to further modify the allowance made to the executor by the probate court.
Complaint is made in appellants’ brief, although not specifically mentioned in their assignment of errors, touching the employment of high-priced auctioneers and expenses incident to the sale of the testator’s personal property, which consisted of hardware, dry goods, drugs, lumber and notions. It is characterized in the record as a “motley collection,” “all kinds of merchandise and of all eras and ages”; some of which had been on hand “since ’59.” It was sold for ninety-four per cent of its invoice value, and sixty-five per cent of such value was realized after deducting all the expenses of keeping, invoicing and selling the property. The net result is not subject to serious criticism.
The various allowances made by the probate court were prima facie correct. On many of the criticized items no evidence was introduced to controvert them or against their reasonableness; and a general finding of the district court approving the final account, except as modified on the executor’s personal allowance, is sufficient.
Still another complaint to be disposed of is the district court’s refusal of a trial by jury; and section 3532 of the General Statutes of 1909 is cited as the authority for this right. That section relates to the right of a trial by jury in the probate court on a demand for the allowance and payment of a claim against the estate, and has no reference to the procedure in the district court in an equitable review of the final settlement approved by the probate court. Such a review covers many and various orders and disbursements and involves a multitude of transactions, in the reviewing of which the services of a jury would be utterly impracticable. A jury trial is not required in such a case; it is not the.practice to grant a jury, and it was properly refused
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Mattie Marney brought this action against J. D. Joseph to recover damages resulting from an alleged libel. In her petition she set forth a number of written statements made and published by the defendant imputing misconduct, fraud and crime to her. A demurrer to the petition was overruled, and the defendant then answered, admitting the writing and publication of the alleged libels and averring that his statements were true. He also alleged that the statements were written in good faith and were such as are privileged under the law. Plaintiff demurred to the answer, claiming that it failed to state a defense, and upon this demurrer the court determined that it should be carried back to the petition, and upon a reconsideration -of the averments of the petition decided that a cause of action against the defendant was not, alleged and accordingly gave judgment for defendant.
The fact that the court had previously overruled the demurrer to plaintiff’s petition did not preclude a reexamination of its averments upon the demurrer to defendant’s answer. It was competent for the court to carry the demurrer back to the petition, thus searching the entire record, and to decide whether or not the averments of the petition, supplemented as they may have been by admissions recited in the answer, stated a cause of action. There is a contention that plaintiff by her demurrer to the answer admitted the aver-ments contained in it to be true, and that these admissions should be held to qualify the averments of the petition, and that so regarded the petition failed to state a cause of action. Ordinarily a demurrer admits the facts stated in the pleading to which it is addressed, and while it is true that the sufficiency of the petition may be tested on a demurrer to an answer and that in testing it any defects in the petition may be regarded as cured by admissions made in the answer (Sill v. Sill, 3Í Kan. 248, 1 Pac. 556), yet on such consideration the averments of the petition can not be regarded to be overturned and destroyed by inconsistent and contradictory averments in the answer. The demurrer does not admit allegations of the answer which are contradictory to the averments in the petition. (6 Standard Proc. 952.) In passing upon the sufficiency of the petition the court could not regard the aver-ments in the answer which were wholly antagonistic to those of the petition, to the effect that the charges of .misconduct and crime made against plaintiff were true, nor that any other of the averments in the answer which were inconsistent with or contradictory to the allegations of the petition were admitted.
We still have the question whether a cause of action is stated in the petition. The contention of the defendant is that the defamatory communications, about the writing and publication of which there is no dispute, are privileged. As the statements imputed to the plamtiff were those which rendered her liable to punishment and were calculated to make her odious and infamous, they were deemed to be actionable and malicious, unless they come within the exception of privileged communications. This exception includes what are termed absolute and qualified privileges. It is first contended that the defamatory statements in question belong in the class called absolute privilege. This privilege is founded on public policy and provides •immunity for those engaged in the public service and in the enactment and administration of law. It is not intended so much for the protection of those engaged in that service as it is for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers and witnesses may speak their minds freely and exercise their respective functions without .incurring the risk of a criminal prosecution or an action for recovery of damages. The statements in question, as we have seen, were not made in any judicial proceeding nor did the occasion bring, them within the rule of absolute privilege. (Kirkpatrick v. Eagle Lodge, 26 Kan. 384, 40 Am. Rep. 316; Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050, 48 L. R. A. 236; Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281, 20 L. R. A., n. s., 361; Note, 5 L. R. A., n. s., 163.) True, the defendant was a guardian of the insane man and his duty required him to protect the estate of his ward, but it did not require him to write and publish charges of misconduct, immorality and crime against those who claimed an interest in the estate of his ward nor those who contemplated the presentation of a claim against it. His statements, as will be observed, were not made to the probate or any other court in any judicial proceeding, but were voluntarily written to relatives of his ward, and some of the statements could not have had any relevancy to any duty owed to the ward. Even if the defamatory statements had been made in a pleading or proceeding in court, they must have been pertinent to the subject of inquiry in order to come within the rule of absolute privilege. (Townsend on Slander and Libel, 4th ed., § 222; New-ell, Slander and Libel, 3d ed., §§ 518, 519.)
It is next contended that the communications come within the class of qualified or conditional privilege. Where a confidential relationship exists between parties so as to put upon one making the communication the duty of protecting the interests of others, and a statement containing no impertinent or unnecessary libelous matter is made in good faith.and in the belief that it comes within the discharge of his duty, it may be within the rule of qualified or conditional privilege. In such a case the protection of privilege is not extended to defamatory statements made with bad intent. A confidential relation can not be used by a party to give expression to his personal spite or ill will, nor can he use the occasion as a cloak to indulge in a malicious publication of an unfounded charge of dishonesty and crime. If he publishes the statement not in the bona fide performance of a duty but in furtherance of a malignant design, the conditional privilege is destroyed. (Kirkpatrick v. Eagle Lodge, supra; Redgate v. Roush, supra; Coleman v. MacLennan, supra; Richardson v. Gunby, 88 Kan. 47, 127 Pac. 533, 42 L. R. A., n. s. 520; Newell, Slander and Libel, 3d ed., § 568 et seq.) In the plaintiff’s petition it is expressly alleged that the defamatory statements were not written or published in good faith,, but that in writing and publishing them the defendant was actuated by a malicious purpose, and hence it must be held that the petition did state a good cause of action against the defendant. While it will devolve upon the plaintiff to prove the malice alleged in order to overcome the privilege claimed, still the questions of the good faith of defendant in an effort to perform a duty owed by him to the family of his ward, his belief in the truth of the defamatory statements, and whether they were made with actual malice, are all for the determination of a jury upon the proof that may be produced. (Richardson v. Gunby, supra).
The ruling of the court in sustaining the demurrer ■ to plaintiff’s petition can not be upheld, and hence its judgment will be reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Benson, J.:
The plaintiff asks to have the mandate of the supreme court of the United States enforced by the entry of a j udgment directed in accordance with the opinion of that court. The defendant presents a plea in abatement and answer denying the jurisdiction of the court to take any further proceedings except to dismiss the action.
The history of this case is written in two previous opinions of this court, viz., Larabee v. Railway Co., 74 Kan. 808, 88 Pac. 72, and 85 Kan. 214, 116 Pac. 901, and two opinions of the supreme court of the United States, viz., Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612, and Missouri Pacific Ry. Co. v. Larabee, 234 U. S. 459. A claim for damages having been made on the trial in this court, proceedings were taken to determine the amount, and damages were assessed against the defendant, including, among other items, attorneys’ fees for services for the plaintiff in the supreme court of the United States. This proceeding is reported in 85 Kan. 214. That judgment was reviewed in the federal supreme court, and the opinion is reported in 234 U. S. 459. The concluding paragraph of that opinion is:
“It follows from what we have said that error was committed in the court below in allowing the items of damages for attorneys’ fees, traveling expenses, etc., in the Supreme Court of the United States, and that from a Federal point of view there was no error in the j udgment below to the extent that it awarded the damages complained of and allowed a claim for attorneys’ fees for services rendered in the state court. And to give effect to these conclusions the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion.” (p. 475.)
Pending proceedings to enter judgment in this court in accordance with the mandate, the defendant presented a motion for leave to file an amended and supplemental answer. No notice having been given of the application, the leave was granted, to be treated, however, as an- application for leave to file in case the filing should be opposed. Afterward a plea in abatement with answer attached was filed by the defendant. Thereupon, the plaintiff moved to set aside the order granting leave to file, and asked for judgment as required by the mandate.
On the argument of this motion, the court orally referred to the circumstances and condition upon which the leave to file had been given. In a brief filed later, the defendant protested against being compelled to assume the position of still asking leave to file its plea in abatement and answer. The practice adopted, however, is that usually followed in such a situation, and is entirely fair to both parties, affording to each an opportunity to be heard upon the question whether the proposed new pleadings should be filed at this advanced stage of the litigation.
The plea in abatement consists largely of literal quotations from various federal statutes regulating commerce, and challenges the jurisdiction of this court over the subject matter of the action on the ground that by virtue of these regulations and the filing and approval of a schedule of rates, exclusive jurisdiction was vested in the Interstate Commerce ■ Commission and the federal courts.
It Ayill be observed that if this challenge is sustained, litigation extending over eight years, embracing two appeals to the supreme court of the United States, determining, if . effectual, a question of great importance to the plaintiff and to shippers and carriers, will come to naught. There is no suggestion that proceedings of the Interstate Commerce Commission or acts of the defendant present a situation different in any respect from the one existing and known at the time of the trial and since. It is said, however, that there was, during all this time, a fatal absence of power, and that this entire fabric of litigation must therefore fall. If the alleged defect was disclosed and brought to the attention of the court by the pleadings or proceedings, the jurisdictional question was necessarily determined, not only by this court, but by the decisions of-the supreme court of the United States affirming the judgment that had been rendered here.
Turning to the pleadings making up the issue upon which the mandamus was allowed, it is found that a plea in abatement was first interposed September 24, 1906, in which the defendant alleged, as it does again in the plea in abatement now presented, that both the defendant company and the Santa Fe company,, whose lines are connected by the transfer track over which the requested service was refused, were interstate carriers engaged in interstate commerce,. and as such amenable to the laws of the United States regulating commerce. It was also alleged that the plaintiff’s mill and elevators were operated in the purchase, sale and shipment of grain and flour at and from its location in Stafford over the defendant’s interstate railroad to various states and foreign countries. It was further alleged :
“Defendant further says that, under the terms and provisions of the Amended Interstate Commerce Act, as passed by the Congress of the United States, and which took effect on the 28th day of August, 1906, there is vested in the Interstate Commerce Commission full and exclusive power and jurisdiction to hear, try and determine all the matters and things in controversy, mentioned and set forth in the said alternative writ of mandamus.”
In the answer , filed on October 10, 1906, the allegations made in the plea in abatement respecting the interstate character and business of the two railroad companies and respecting the interstate nature of the business of the plaintiff are in substance repeated, and it is alleged that:
“Under the terms and provisions of the amended Interstate Commerce Act as passed by the Congress of the United States, and which took effect on the 28th day of August, 1906, there is vested in the Interstate Commerce Commission full and exclusive power and jurisdiction to hear, try and determine, all the matters and things in controversy mentioned and set forth in the said alterative writ of mandamus, and that neither the state of Kansas, nor any court or commission of said state, has the right, power, authority or jurisdiction to hear and determine any question or controversy arising under the pleadings and issues of this case.”
The new plea in abatement and proposed answer now presented set out in greater' amplitude the interstate character of the business of the two railroad companies and their track connections at Stafford and the business of the plaintiff, together with quotations from the federal laws concerning interstate commerce and aver-ments that this court has no jurisdiction over the subject matter of this suit, but nothing is found in the new pleadings now presented „■that is not in substance, at least, and in sufficient detail, contained in the pleadings upon which the case was tried, unless it is the following averments of the proposed new answer-:
“That prior to September 1st, 1906, the said defendant and said Santa Fe Company had each filed with the Interstate Commerce Commission, a schedule of freight tariffs to be by each charged on transportation of freight consigned to and from said station of Stafford, Kansas, including a switching or terminal charge of $2.00 per car to be charged by the said defendant, and also by the said Santa Fe Railway Company, on cars transferred by either of said companies over said terminals from or to said Larabee Mills, so located as aforesaid on the track of said defendant; and said terminal or switching tariff, so filed by said respective companies, applied, by special reference therein, to said Larabee Flour Mills Company, and remained in force and was effective from long before said date, continuously until long after July 1st, 1907, and each, the plaintiffs, said defendant and said Santa Fe Company, in the handling and moving of said freight from and to said Larabee Flour Mills, had submitted themselves to the jurisdiction, supervision and control of the said Interstate Commerce Commission, in accordance with the terms, provisions and conditions of the Act of Congress to regulate commerce and the amendments thereto; and the defendant avers that all such tariffs and schedules of rates, switching and terminal charges, so filed as aforesaid, were approved, ratified and confirmed by said Commission as provided by said Act of Congress; and the said terminals and switching facilities of said respective companies at Stafford were each and all in-strumentalities of interstate commerce, and for several years prior to September 1st, 1906, and ever since, were maintained and operated by said companies under rules and regulations prescribed and promulgated by said Commission under and in compliance with said Act of Congress, and such rules and regulations were especially designed and intended for the handling and moving of the "products of said Larabee Flour Mills, over and along the terminals of each this defendant- and the said Santa Fe Company, and said plaintiffs for years prior to September 1st, Í906, were a party to and accepted such rates and terminal charges.”
According to these averments the defendant filed its schedules with the Interstate Commerce Commission prior to September 1, 1906. Whether before or after the date of its refusal to perform the-service, which was the ground of the plaintiff’s action, is not stated. Passing by that matter, however, it will-be observed that there was no question of rates nor of any incidental details of the service, but the complaint was that the defendant refused to perform the service. The wrong consisted in refusing to render any service — whether interstate or intrastate — in respect to receiving and delivering cars at the plaintiff’s mill. Among the findings of fact on the trial of this action was the following:
“The refusal to make such delivery was not based upon a claim that the compensation paid for the service was not satisfactory, nor upon a claim that any part of such service constituted a part of interstate commerce, nor upon a claim that the Missouri Pacific did not undertake to perform such service.” (Larabee v. Railway Co., 74 Kan. 808, 814, 88 Pac. 72.)
The act to regulate commerce, as amended by the act of March 2, 1889 (25 U. S. Stat. at Large, ch. 382, § 9, p. 862), and February 8, 1895 (28 U. S. Stat. at Large, ch. 61, p. 643), provides:
“Nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies:” (24 U. S. Stat. at Large, ch. 104, § 22, p. 387.)
It was said in the first opinion:
“It is Hornbook law that a carrier can not renounce as against some disfavored shipper the public duty which it assumed when it engaged in the kind of transportation business which it offers to conduct. Being a common carrier for all, the defendant must switch all cars tendered for that purpose, including those intended for the mill company. It is equally elementary that a carrier may be compelled by mandamus to perform duties of this kind to an aggrieved shipper.” (Larabee v. Railway Co., 74 Kan. 808, 817, 88 Pac. 72.)
Nothing in disapproval of the paragraph above quoted is found in the opinion of the supreme court affirming the judgment, and no reference is made to the clause of the federal statute preserving common-law remedies. It was said, however:
■ “It is also true that the Missouri Pacific was a common carrier, and as such was engaged in the work of transferring cars from the Santa Fe track to the mill company, and after this controversy arose continued like transfer for all industries located on the Missouri Pacific at Stafford, except the mill company. While no one can be compelled to engage in the business of a common carrier, yet when he does so certain duties are imposed which can be enforced by mandamus or other suitable remedy. . . . It is not contended that the commission has taken any action in respect to the particular matters involved. It may never do so, and no one can in advance anticipate what it will do when it acts. Until then the authority of the State in merely incidental matters remains undisturbed. In other words, the mere grant by Congress to the commission of certain national powers in respect to interstate commerce does not of itself and in the absence of action by the commission interfere with the authority of the State to make those regulations conducive to the welfare and convenience of its citizens. Running through the entire argument of counsel for the Missouri Pacific is the thought that the control of Congress over interstate commerce and a delegation of that Control to a commission necessarily withdraws from the State all power in respect to regulations of a local character. This proposition can not be sustained. Until specific action by Congress or the commission the control of the State over these incidental matters remains undisturbed. . . . This common-law duty [of a carrier] the State, in a case like the present, may, at least in the "absence of Congressional action, compel a carrier to discharge.” (Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612, 619, 623, 624.)
The questions of jurisdiction as affected by the federal regulations of commerce were presented as fully as counsel desired, and were considered as fully as presented, and were finally decided adversely to the de fendant’s contentions. The pleadings were sufficiently comprehensive to admit proof of the filing and- approval of schedules of rates and any action of the Interstate Commerce Commission and of the defendant affecting these matters. , •
It seems plain that in the present stage of the litigation the case should not be opened to admit proof which was easily available and might have been offered at the trial. Treating the question, however, as one of pleading only, and conceding for the moment that the original pleadings were insufficient to admit proof of the filing and approval of the schedules, should new pleadings be allowed at this time? A similar effort was. disapproved in Louis. & Nash. R. R. v. Higdon, 234 U. S. 592. The action was for damages for failure to furnish cars at Higdon’s mine. No federal question' had been raised in the trial or upon appeal to the Kentucky court of appeals when the case was remanded by that court for a new trial- in the circuit court. The defendant railroad company then tendered two amended answers, but leave to file was refused. The second amended answer pleaded that the service demanded would be a direct, unreasonable and unwarrantable interference with the interstate business of the company and a burden upon interstate commerce. The case háv-ing been decided adversely to the railroad company, for the second time in the court of appeals,, it was taken to the supreme court of .the United States where it was said:
' “Had the Court of Appeals put its decision upon the ground that the duty of the Circuit Court was simply to give effect to the judgment of the Court of Appeals by enforcing the rights of the parties upon the principles settled by it in its first decision and that the attempt to inject Federal questions into the record by amended pleadings after the case was remanded did not seasonably raise Federal questions reviewable by .the Court of Appeals, the case would be ruled by Union Mutual Life Ins. Co. v. Kirchoff, 169 U. S. 103, in which this court held that such attempts to raise Federal questions came too late to lay the foundation for review here. See, also, Yazoo & Mississippi Valley Ry. Co. v. Adams, 180 U. S. 1; Bonner v. Gorman, 213 U. S. 86.” (p. 597.)
It will be observed that the federal question sought to be raised in that case related to the regulations of interstate commerce as in this case. Here these regulations were pleaded and considered originally, but if by the amended pleadings now offered another phase of these regulations is pleaded not presented before, then an attempt is made to raise another federal question, which falls under the condemnation of the case last cited. Indeed the condemnation applies with added force since the amendments are first proposed after two hearings in this court, and two appeals to the federal supreme court, and at a time when no issue remains to be tried.
The exclusiveness of the jurisdiction over proceedings to enforce the remedial provisions of the commerce acts must be distinguished from the concurring jurisdiction of state courts over questions which, although incidentally involving interstate commerce, do not arise from or are not based on violations of these acts. This distinction was considered in Murray v. Chicago & N. W. Ry. Co., 62 Fed. 24, cited in Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, to the point that the principles of the common law are operative upon interstate commercial transactions except so far as modified by congressional enactment. In Balt. & Ohio R. R. v. Pitcairn Coal Co., 215 U. S. 481, relating to the distribution of cars at a coal mine in a situation' involving a complexity of facts, the court in considering section 10 of the act of congress of March 2, 1889 (25 U. S. Stat. at Large, ch. 382, pp. 855, 862), a new section allowing an action in the circuit or district courts of the United States to recover damages for violations of the provisions of the act, said:
“The remedy afforded by that section, in the cases which it embraces, must be limited either to the performance of duties which are so plain and so independent of previous administrative action of the commission as not to require a prerequisite exertion of power by that body, or to compelling the performance of duties which plainly arise from the obligatory force which the statute attaches to orders of the commission, rendered within, the lawful scope of its authority, until such orders are set aside by the commission or enjoined by the courts.” (p. 499.)
In this case it is manifest that the duty which the defendant refused to perform was so plain that a previous action of the commission conceding its power to act was unnecessary to make that duty more imperative. Certainly the language of the supreme court above quoted is applicable'to this situation. True, the provision there considered related to the jurisdiction of federal courts, but the duty enforced in this action was a common-law duty which the state courts had a right to enforce unless excluded by the interstate commerce regulations, whose action it seems need not be invoked in case the duty is so simple as not to reasonably require it. This view seems also to be in harmony with the theory of the defendant at the trial, for, as before stated, its refusal to perform the service was not based upon the claim that it was a part of interstate commerce.
It is concluded that in the present situation the duty of the court is to enter judgment as directed by the reviewing court, and to set aside the formal order allowing the answer to be filed, no sufficient reason appearing for making the order.
Judgment will be entered accordingly.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action begun by Edward S. Stocks against the Leavenworth Terminal Railway & Bridge Company to recover damages for personal injuries sustained by him while in the company’s employ. The defendant owns and operates a bridge across the Missouri river at Leavenworth. There is a draw section in the bridge near the Kansas side, and this span is opened by turning upon a so-called pivot. To turn the bridge keys are inserted in the machinery of the pivot and into these keys are inserted levers from eleven to twelve feet long, made of timber, and which are about six inches square at the center, tapering to about four inches square at the ends. In opening or closing the bridge these levers are pushed around by men until the draw section has come to the desired position. On November 30, 1913, a steamboat pushing a barge of stone signaled to the superintendent of the defendant in charge of the bridge that it desired to pass through the bridge. The superintendent ordered workmen, among them the plaintiff, out upon the bridge to operate the draw, and the bridge was opened to an angle of about forty-five degrees when, it appears, the superintendent, from a place on the west and Kansas side of the river, ordered that the bridge be closed. The steamboat and barge, it appears, had not cleared the opening, but were turned by the wind and began to drift towards the bridge. The possibility of their striking the bridge became apparent to the superintendent, and he ordered that the opening be widened. The men reversed their positions and began pushing the levers in the opposite direction, but before they could comply with this order the steamboat struck the bridge, causing the keys to revolve rapidly, carrying the levers with them, one of which struck the plaintiff in the back, causing the injury of which he complains. Defendant, in its answer, denied generally the allegations in plaintiff’s petition, and further alleged that plaintiff was guilty of contributory negligence. On the trial of the case evidence was offered tending to show that the proper position of the bridge when open was at an angle of ninety degrees from its position when closed, and that had it been opened to this angle on this occasion the accident would not have happened. Evidence was also given tending to show that the superintendent usually stationed himself upon the draw section when directing the opening and closing of the bridge, and there was testimony, further, that plaintiff and those working with him could not observe the relative positions of the bridge and the steamboat while engaged in the work, although it did appear that plaintiff had assisted in opening and closing the bridge many times before. Defendant’s demurrer to plaintiff’s evidence on the grounds that defendant was engaged in interstate commerce and that plaintiff had failed to prove facts sufficient to constitute a cause of action was overruled. The jury returned a general verdict in favor of plaintiff and also made special findings of fact. Overruling defendant’s motions for judgment on the special findings and for a new trial, the court gave judgment against the bridge company, and it appeals.
Error is alleged in the court’s overruling of defendant’s demurrer and in the refusal of the court to direct a verdict in its favor, and complaint is also made as to certain instructions and rulings as to the admission of evidence. However, the principal contention of defendant appears to be that plaintiff was injured by the negligence, if any, of his coworkers, and it is not, therefore, under the fellow-servant doctrine, liable in damages for the injury.
The contention of the defendant can not be sustained. Oursler was the superintendent of the company, and he had controlled and operated its business for about eighteen years. To him the company had committed not only the control and management of the bridge business, but also the control of the men opening and closing the bridge. He had been entrusted with authority to employ and discharge the men; but what is of greater consequence, so far as the legal question involved is concerned, is that the duty was devolved on him to give orders and warnings so as to safeguard the men while they were at work. In this respect he was performing the absolute duty of the master, and as to the men turning the levers he stood in the place of the master. It was the duty of the master to make the service and the place where the men were working reasonably safe. That was a continuing duty, and the responsibility for its nonperformance can not be escaped by the company because the duty had been delegated to another, not even where such other may be regarded as in the same grade or rank of service as the injured persons. (A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632; H. & St. J. Rld. Co. v. Fox, 31 Kan. 586, 3 Pac. 320; Mining Co. v. Robinson, 67 Kan. 510, 73 Pac. 102; Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856; Crist v. Light Co., 72 Kan. 135, 83 Pac. 199; Barnett v. Cement Co., 91 Kan. 719, 139 Pac. 484.)
It appears that the superintendent took a position on the west bank of the river, and from that point he gave the orders and signals to the men who were pushing on the levers. It was incumbent on the superintendent not only to give signals and directions for the opening and closing of the bridge, but it also devolved on him to warn the men of the perils which finally overtook them and caused injury to the plaintiff. This was the master’s duty, and he was acting for the master. He was in a position to see that the boat and barge had not safely passed through the opening, that those in charge of them had lost control and that they were drifting against the bridge. With their heads down the men were going around and around, pushing on the levers in the work of opening and closing the bridge in compliance with the orders of the superintendent. Each side of the bridge where they were at work had a latticed railing which was about five feet high and which obstructed their view, but, under the circumstances, they would naturally rely on the superintendent to observe the progress of the boat and barge and to give them such signals and warnings as the progress of the work and the safety of the men demanded. When the pilot of the boat saw that it was going to strike the bridge he jumped from the pilot house, and this movement was seen by the superintendent. He saw the pilot leaving the pilot house about a minute before the boat struck the bridge, and he admits that he was then aware that the boat would collide with the bridge, but, although he had this knowledge, he gave no warning to the men working on the levers. It was his duty to give warning of the impending collision to the men, and there is testimony to the effect that if it had been'given the accident and injuries might have been avoided. In Brick Co. v. Shanks, supra, it was held that:
“In determining the question whether or not two employees are fellow servants, the fact that the negligent act of one of them, which injures the other, violates a duty which the master himself owes is controlling, irrespective of the rank or grade of service between the employees, and notwithstanding the circumstance that they are engaged in a common employment directed to a common end; and if, in the discharge of the master’s duty, a warning be necessary, it is not enough that he has provided a competent person to give it; the warning must be given.” (Syl. ¶ 3.)
The defendant insists that Bridge Co. v. Miller, 71 Kan. 13, 80 Pac. 18, 1 L. R. A., n. s., 682, supports its theory that the superintendent and the plaintiff were fellow servants, and that the defendant was therefore not liable for the superintendent’s negligence. In that case it is pointed out that rank and grade of service between employees is not controlling and, further, that it is not material that employees of the same master are assigned to different departments of the same general enterprise, and that an employee engaged in the same general business is not to be regarded as the vice principal merely because he is in another rank or grade than other employees, or is assigned to a different branch or department of the service. It is expressly stated, however, that as to any duty owed by the master to his servants he is liable for breaches of such duties without regard to the duties or the rank or department of the servant to whom the duties have been delegated.
We find nothing substantial in the objections to the rulings of the court in charging the jury. The issues in the case were fairly presented in the instructions given.
Complaint is made of the ruling denying defendant’s motion for judgment on the special findings, and it is insisted that one answer returned by the jury is incon sistent with the general verdict. One of the questions asked by the defendant was: “Is the defendant maintaining a pivot drawbridge across the Missouri river and maintaining and operating terminal facilities in Kansas and Missouri?” The answer was, “No.” The question should not have been submitted in that form, as a number of distinct questions were included in it. To have answered, “Yes,” would have been an affirmative answer of all of the questions embraced in the interrogatory, and since the answer could not be in the affirmative, the jury concluded that a negative answer should be given. That the defendant was maintaining the bridge was not in dispute, but it appears that a railroad company was operating a railroad over and at the terminals of the bridge. The superintendent testified that the defendant owned the bridge, rails, right of way and buildings, but that the railroad company owned the engines and cars, and was operating the railroad. It is clear, therefore, that the negative answer only means that the defendant was hot doing all of the things grouped together in the question asked.
It is contended that the award of $6000 as damages is excessive. The plaintiff was forty-eight years of age at the time of his injury, and his family consisted of a wife and two daughters who were respectively twelve and thirteen years of age. For a number of years he had been employed in veneering and finishing furniture, and he was said to be a good enameler and finisher. For a time he was in the soldiers’ home, where he did jobs of painting for which he was paid $12 to $15 a month. For about three months he had been employed by the defendant at the bridge. One of the physicians who examined plaintiff said that thé injury to his back was severe, that it disabled him from any labor where he would have to use his back, that there might be some improvement in his condition in the future, but that he would never be able to .use the muscles of his back as he had before. Another physician gave substantially the same evidence as to his condition, and while he thought the plaintiff might become much better in the future than at that time, an entire recovery he regarded to be questionable. The plaintiff suffered very much pain for a period of two months after the accident, and passed bloody urine, indicating, as one of the witnesses, said, that a kidney had been injured. A nurse testified that while she attended the plaintiff he suffered terrible pain, and that she administered opiates to him. On the whole testimony we can not say that the award is out of reason or that it indicates that the jury in making it was actuated by passion or prejudice.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover upon a contract, the material parts of which, so far as this case is concerned, are as follows:
“This agreement, made and entered into this 23rd day of February, A. D. Nineteen Hundred and Eleven, by and between M. N. Bair, Hastings, Nebraska, Architect, party of the first part, hereinafter known as the Architect, and School District 141, Smith County, State of Kansas, Owner, party of the second part, hereinafter known as the Owner.
“Witnesseth:- That the said Architect, for and in consideration of the payments to be made to him by the said Owner as hereinafter provided, does hereby covenant and agree to prepare Plans and Specifications for a Brick 2-Story School Building, as approved by Owner. The Architect to make necessary visits at intervals. The said work to be done in a skillful and business-like manner. Said owner, for and in consideration of said Architect strictly performing, the covenants and agreements, above specified, by and at the times mentioned, do hereby agree to pay to the said Architect a sum equal to (3-%) three and one-half per cent of the cost of Building. To be paid as follows: ($50) Fifty Dollars in hand 50 per cent when contract is let. Balance when completed and accepted by District. . . .
“It is agreed that all drawings, specifications, etc., as instruments of service, and [are] the property of the Architect and are to be returned to him after having answered the purpose for which they were made, or upon demand of the Architect.”
The answer alleges that the plans and specifications to be furnished by the plaintiff were to be for a building that could be let by a contract for a total not exceeding $10,000, and that the plaintiff further agreed, at the same time, to have the plans and specifications approved by the state architect, as provided by law. The answer further alleges that neither of these agreements was ever complied with. It also alleges that it was understood and agreed that the plans and specifications would not be approved by the de fendant until a contract was let for the construction of a building, under the plans to be furnished by the plaintiff, costing not more than $10,000; and that the plans and specifications were never approved by the school board.
Plans were prepared, and bids were advertised for, but no bid was submitted for less than $14,000 for the building, with a heating plant. The plaintiff contends that the plans were approved by the defendant without qualification. The evidence to support this contention is, that bids were advertised for upon the plans prepared by him; that the defendant never returned the plans to him, after declining to build according to them ;■ and that the defendant received twenty-five dollars deposit from a man in Marysville, Mo., for the use of the plans in preparing a bid on a building. This money was received according to the plaintiff’s instructions. There is no evidence to show that the defendant specifically approved the plans. The evidence of the defendant tends to show, that there was an understanding that the plans were to be for a-building to cost $10,000 or less; that the approval, such as there was, was conditioned upon the ability of the defendant to let a contract for the erection of the building for $10,000 or less; that the defendant could not do this; that upon its failure to let the contract for $10,000, the plaintiff was notified of such failure and requested to prepare new plans; this he did not do. Other plans, furnished by other architects, were adopted and followed. There is plenty of evidence to show that such approval as there was of the plans was conditioned on the ability of the defendant to let a contract for the construction of the building for a sum not to exceed $10,000. This does not contradict or vary the terms of the contract in any way. It does render the contract definite and certain.
The jury found in favor of the defendant. Judg ment was rendered on the verdict, and the plaintiff appeals. His principal contention is that the contract is definite and certain, and that evidence was erroneously admitted contradicting or varying the terms: He complains of instructions five and six which read as follow:
“5. If it was the understanding and agreement between the plaintiff and the school board that the plans to be drawn by the plaintiff, should be for a building not to cost over $10,000.00, and the plaintiff undertook to draw the plans for a building, which should not cost more than $10,000.00, and the plaintiff failed to furnish plans for a school building that would not cost over the said $10,000.00, the defendant school district would not, in such case, be bound to accept such plans, nor in such case would defendant be liable for the services of the plaintiff in drawing such plans, unless the school board accepted or made use of such plans.
“6. If the plaintiff undertook to draw the plans for a building not to cost over $10,000.00 and failed to do so, the defendant would, for that reason, have a right to reject such plans, and if you find such to be the case and that the plans were rej ected for such reason, the fact, if it is a fact, that the building was let to other parties on other plans for a different sum than $10,000.00, would make no difference in their right under such circumstances to refuse payment for such plans.”
These refer to the understanding concerning the cost of the schoolhouse. The contract provides that the “Architect” shall prepare plans and specifications for a brick two-story building as approved by the “Owners.” What is to be the size of the building? How high shall the building be? How is it to be finished? How much is it to cost? There must be something outside the contract to determine these questions. The plaintiff must have had instructions outside the contract with which to undertake to comply, in the preparation of his plans. One of these instructions must have been concerning the cost of the building, and the outside agreement or understanding between these parties concerning' the cost of the building does not contradict or vary the terms of this contract. Such an understanding merely supplies an omission in the contract, which omission must be supplied before the contract can be complied with. In Evans v. McElfresh, 85 Kan. 389, 116 Pac. 612, this court said:
“Where a writing is incomplete and shows on its face that all the stipulations between the parties were not included in it, parol proof of the omitted parts of the contract which are not repugnant to or inconsistent with the written portions may be introduced to supplement that which is written.” (Syl.)
The court, in that case, cited and quoted from Shepard v. Haas, 14 Kan. 443; St. L. L. & W. Rly. Co. v. Maddox, 18 Kan. 546; and Peters v. McVey, 85 Kan. 393, 52 Pac. 896. In Bank v. Brigham, 61 Kan. 727, 60 Pac. 754, this court said:
“Where the phraseology of an instrument is doubtful or ambiguous, meaning can be given to it by showing the inducing causes to the making of it and the facts and circumstances surrounding its execution and involving the parties to it; and generally, evidence not contradictory of the language of an instrument but explanatory of the purpose and object of the parties in executing it will be received.” (p. 729.)
(See, also, Babcock v. Deford, 14 Kan. 408; Polk v. Anderson, 16 Kan. 243; Schoen v. Sunderland, 39 Kan. 758, 18 Pac. 913; Cattle Co. v. Guthrie, 56 Kan. 754, 44 Pac. 984.)
The instructions complained of were properly given, in order to enable the jury to come to a correct conclusion upon the issues.
The plaintiff complains of instruction No. 7. This concerns the visits to be made by the architect. The contract provides that the architect shall make necessary visits at intervals. What are necessary visits? Some evidence was introduced on the understanding of the parties as to this matter. This was admissible, the same as evidence concerning the understanding of the parties as to the cost of the school building. This question was within the issues, and instruction No. 7 was properly given.
The plaintiff complains of the refusal of the court to give instruction No. 1, as requested by him. It was substantially given in the court’s instruction No. 8.
Complaint is made of the court’s refusal to give requested instruction No. 2. This concerns an allegation of fraud or mistake set out in the answer. The court, instead of giving this instruction, instructed the jury that no fraud or mistake had been shown in the making of the contract. This contention is for that reason without foundation.
The plaintiff complains of the refusal of the court to give instruction No. 3, as requested by him. This concerns the rescission of the contract. Rescission was not contended for. The instruction was immaterial.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an action on an insurance policy held by a mortgagee, issued to the mortgagor, with mortgage clause attached, the mortgage clause containing this provision:
“That this insurance, as to any claim that the mortgagee or trustee only may have in the proceeds thereof, under the foregoing agreement, shall not become void by reason of any act or neglect of the mortgagor or owner of the property insured.”
The policy provides that it shall be void, if with the knowledge of the insured, foreclosure proceedings. be commenced. It also provides that if fire occur, the insured shall give immediate notice of any loss thereby, in writing, to the company, and. within sixty days after the fire, unless such time is extended, in writing, by the company, shall render a statement to the company, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the time and origin of the fire.
■ The company sought to avoid the policy because foreclosure proceedings were commenced, with the knowledge of the insured, and because the insured did not, within sixty days after the fire, make and furnish to the company proof of loss as required by the policy. On the trial the court permitted the plaintiff’s reply to be amended so as to set out a waiver of notice of the institution of foreclosure proceedings and a. waiver of proof of loss. The jury found in favor of the plaintiff, Catherine E. Jones, on evidence sufficient to support the verdict.
The appellant complains of three things, to wit:
“1. Permitting plaintiff to introduce testimony to the effect she had informed defendant of an intention to foreclose the mortgage upon the property; no foreclosure then having been commenced.
“2. Permitting plaintiff to amend the reply filed and requiring defendant to proceed to trial upon the reply as then amended.
“3. The verdict is excessive and upon the pleadings and evidence should have been for defendant.”
The appellant’s first contention either ignores or renders nugatory the mortgage clause attached to the policy. Of what use is insurance held by a mortgagee on mortgaged property if the commencement of foreclosure proceedings vitiates the policy? An insurance policy held by a mortgagee, under a mortgage clause, as above set out, contemplates that there may be a foreclosure of the mortgage. (Insurance Co. v. Boardman, 58 Kan. 339, 49 Pac. 92; Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78.) In Insurance Co. v. Boardman, supra, this court said:
“Where a policy of insurance is issued to a mortgagor, and at the same time a mortgage clause is attached by which it is stipulated that the loss, if any, shall be payable to a mortgagee therein named, or its assigns, that the insurance, as to the mortgagee, shall not be invalidated by any act or neglect of the owner, and that the provisions of the mortgage clause shall take precedence over the provisions of the policy, held: First, that the mortgage clause will be liberally construed; and that a breach of the term's of the original policy which have especial relation to the risk as between the mortgagor and the insurer will not invalidate the policy in a suit brought by the mortgagee unless the provision violated is consistent with the mortgage clause; second, that the commencement of a suit to foreclose the mortgage and the appointment of a receiver to take charge of the property is not such a breach as will avoid a policy containing a clause providing that the policy shall be avoided upon the commencement of proceedings of foreclosure, or any change in title or possession, whether by legal process or judicial decree; such a clause being inapplicable to the risk as between the insurer and the mortgagee, whose interest in the insured property is not impaired or diminished by such proceedings.” (Syl.)
Again, in Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78, we find this:.
“A mortgage clause that the loss, if any, shall be payable to the mortgagee as his interest may appear, ‘subject, however, to all the terms and conditions of this policy,’ does not relieve the insurer from liability upon a policy containing a condition that it shall be avoided by proceedings to foreclose any mortgage on the property — the insuring of a mortgage lien being sufficient indication that the company must have contemplated a possible or probable foreclosure. When an insurance contract prepared by the insurer contains ambiguous or inconsistent provisions it will be construed so as to uphold rather than defeat the indemnity.” (Syl. ¶ 3.)
(See, also, Insurance Co. v. Coverdale, 48 Kan. 446, 27 Pac. 682; Dodge v. Hamburg-Bremen Fire Ins. Co., 4 Kan. App. 415, 46 Pac. 25; Note to Brecht v. Law Union & Crown Ins. Co., 18 L. R. A., n. s., 204-207.)
The next complaint is of the amendment of the reply which was amended by setting out a waiver of notice of foreclosure proceedings, and of proof of loss. The allowance of this amendment was within the sound discretion of the trial court. (Civ. Code, § 140.) In order to reverse this judgment for this reason, the appellant should show that it was in some way injured or misled by this amendment. (Civ. Code, §§ 140, 141, 143.)
The last contention is that the verdict is excessive. Why and how much is not shown.
No error appears. The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff company sued on four causes for action for the recovery of $1989.68, $53.53, $433.23 and $191.31, respectively, on a certain promissory note for money had and received for delinquent taxes on real estate purchased by the plaintiff, and for a defaulted payment and interest on another promissory note. The first, second and fourth causes of action and $99.30 of the third were practically confessed and the controversy was really over the claims asserted by the defendant in his various pleadings, the substance of which was that the plaintiff had swindled him in a transaction involving an exchange of merchandise for land. It was alleged that the defendant was a farmer and had never been engaged in mercantile business, that the plaintiff by its president represented that the stock was in first-class condition, clean and merchantable, and would sell readily as first-class merchandise, and was free from shelf-worn and deteriorated stock, all of which statements were knowingly false and fraudulent; that the stock was invoiced and valued upwards of $17,000, but was in fact worth about $9000, and that the defendant was cheated to the extent of the difference. Further allegations were made touching the conduct of the plaintiff respecting the invoice and marking of the goods, and in reference to another stock agreed to be taken in addition to the one already mentioned, to consist of new suits of a total value of not more than $200 to which the plaintiff added and shipped to the defendant other goods so that all amounted to upwards of $817.62, such goods being shelf-worn stuff not worth to exceed ten per cent of the price shown on the invoice. Further, that certain property purchased of the plaintiff as real estate for the sum of $18,000 turned out to consist of personal property to the extent of $831.50 in value which the plaintiff fraudulently led the defendant to believe was a part of the real estate; that in the invoice of the stock were items of millinery, $275 including freight, which did not belong to the plaintiff and which the defendant did not agree to purchase and which were of no value whatever; that later a supplemental agreement was entered into by which the plaintiff was to pay the defendant a certain sum for his interest in an artesian well, such interest being worth $100; and lastly, that the plaintiff had failed to repay as he had agreed to do ; and judgment against the plaintiff was prayed in the sum of $7698.31. An extended reply was filed and a trial was had resulting in a verdict in favor of the defendant for $1788.99 over and above plaintiff’s claims. The plaintiff appeals, assigning and asserting error in the admission and rejection of evidence, in giving and refusing instructions and in overruling the motion for a new trial.
In the plaintiff’s brief it is contended that the contract for the exchange was reduced to writing affer' the stock had been invoiced and examined by the defendant, during which matters of differences had been compromised as they arose; that the stock had been retained without eomplaint with full knowledge of its condition; that the controversy over the fixtures had been compromised; that the land involving the taxes had been conveyed by deed warranting it free from taxes; and finally, that the differences had been adjusted and a thorough understanding and settlement, including the question of fixtures, had between the parties.
Our attention is not called to the evidence which is deemed to support these contentions and there were no special findings. The defendant by counter-abstract brings into the record -evidence which fairly tends to support his claim that the scheme to defraud him was adroitly planned and skilfully carried out, such testimony being offered by the defendant, his son, and various clerks and salesmen who had knowledge of the stock and its condition and value. All this evidence and much more which is not embraced in the abstract was considered by the jury, who found adversely to the plaintiff’s contention, which finding was approved by the trial court.
The plaintiff requested an instruction that under the pleadings and evidence it appeared that the parties agreed on the value of the fixtures, that a later agreement of March 29, 1912, embodied the former agreement, so that any further claim on account of such fixtures was thereby waived. The agreement of March 29, 1912, included among other things a provision that the windmill, pump and tank were to be stricken from the invoice and to go as part of the real estate on which they were situated. It is strenuously asserted and disputed that this was a compromise agreement; but aside from its recital, “and there being some misunderstanding between the parties as to certain provisions of the said contract originally entered into,” there is nothing to indicate a compromise, and the quoted words are immediately succeeded by the following: “It is hereby a,greed between the parties as follows, as a supplemental agreement.” And an inspection indicates a supplemental rather than a compromise contract. The plaintiff testified that Mr. Livengood told him the list of things invoiced, aside from the windmill, pump and tank, were personal property and that he did not find out differently until he consulted a lawyer, which was a month or six weeks after the contract of March 29 was signed. Mr. Livengood testified that he thought it was personal property, that he would not have asked the plaintiff to pay for it had he thought it was really a part of the real estate. So at least there seems to have been a mutual misunderstanding or mistake concerning the legal character of certain property — consisting largely of shelving — and no reason occurs why one who was purchasing of another and paying for real estate should, because of mutual misapprehension, be called on to pay for a part of it twice. All the facts were before the jury, and we do not find any affirmative showing of prejudicial error in refusing the requested instruction.
Complaint is made of an instruction given, that if certain shelving, gas-light system, engine, feed mill, cash-carrier system, roller ladder and track were permanently affixed to the building by nails, bolts or screws with the intent that they be permanently used in carrying out the purpose for which the building was designed they should be regarded as a portion of the real estate and not as personal property unless the jury should find an agreement that they were to be invoiced as personal property or that there was a settlement of the matter between the parties, in either of which events they were to be regarded as personal property. This instruction appears to state the law correctly and it was not error to give it. (Bank v. Bank, 6 Kan. App. 400, 50 Pac. 1098; Marshall v. Bacheldor, 47 Kan. 442, 28 Pac. 168; Bank v. James, 75 Kan. 842, 89 Pac. 1132; 19 Cyc. 1039.)
. It is urged that the defendant was obligated to pay the taxes on the Colorado land in pursuance of the provisions of the deed executed by him which contained a covenant that the land was free and clear from all taxes, assessments and incumbrances of any kind and nature whatsoever. In the defendant’s amended and supplemental answer he alleged that these taxes consisted of an irrigation tax amounting to $333.95, and certain other taxes amounting to $94.81; that on or about February 13, 1912, it was agreed between the parties that the irrigation tax should be paid by the plaintiff and the remaining taxes by the defendant, who admitted his liability therefor. There was considerable evidence introduced touching this alleged agreement, and the jury were instructed that if they should find from the evidence that there was an agreement made by which the defendant was to pay the delinquent taxes for 1911, or that there was. any agreement as to the payment of such taxes other than that contained in the deed, they should find for the plaintiff. Testimony on this matter was conflicting, and the jury appeared to have believed that of the defendant. It is argued, however, that the matter was covered by the written contract expressed by the deed and could not be affected by parol testimony. To this it is replied that the consideration of a deed may always be inquired into, and in addition the plaintiff’s president wrote a letter about March 1, 1912, asking to have the defendant pay this item and promising that he would reimburse him therefor. The real-estate agent who brought about the exchange testified that he had some correspondence with the president about the taxes, and received a letter which he showed to the defendant, telling the latter to pay the first half of the taxes for 1911 up to the date in 1912, and when the deed was' consummated he would reimburse him' therefor. The defendant testified that the agent telephoned him that he had a letter from the president asking him to go down and pay these taxes; that afterwards he, the defendant, read the letter. “Q. State what was said in that letter ? A. He asked me to pay the taxes and he would give me credit for them down here and I took a receipt.” The plaintiff refers to the deed of February 13, 1912, and acknowledged on the same date as having been reacknowledged February 13, 1912, as in the nature of a reiteration of the warranty against taxes. This, however, is explained by the recital of April 12, 1912, that Oliver Adam Wimer was one arid the same person as O. A. Wimer, the grantor.
Such of the testimony as appears in the record presents the somewhat usual case of a man unversed in mercantile business anxious to trade land for a stock of goods craftily misrepresented as to quality and value, and there seems to have been the usual conflict of evidence resulting in a verdict fairly supported evi-dentially and approved by the trial court.
Finding no error materially prejudicial to the rights of the plaintiff the judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Victor Suniga recovered a judgment against The Atchison, Topeka & Santa Fe Railway Company for damages for personal injuries alleged to have been caused by the carelessness and negligence of the company and its servants. It appears that the plaintiff was in the employ of the defendant as a section hand, and on April 24, 1913, was engaged, with others, in handling a loaded hand car over the track of the defendant. The car was removed from the track to permit a train to pass, and in replacing the car, after the passing of the train, the car was thrown upon plaintiff and he was severely injured. Plaintiff alleged that the hand car was heavily loaded with planks and tools, that four men besides himself were lifting the car, that notwithstanding suggestions by the workmen that part' of the load be removed from the car and that they proceed slowly the foreman in charge insisted that no part of the load be removed and, with violent oaths, ordered that they hurry in replacing the car. Plaintiff alleged that there was an insufficient number of workmen engaged in replacing the car, and that because of this and the haste required by the foreman he was shoved down and the car pushed upon him. He alleged that the resulting injury had rendered him unfit to ever again do manual labor requiring strength, and that he had been compelled to employ physicians at considerable expense, and for these and for the pain and suffering endured he asked a recovery. Defendant, in its answer, denied generally the allegations of plaintiff and set up as defenses assumption of risk and contributory negligence. The trial resulted in a verdict in favor of plaintiff, in which he was awarded $500, and the jury returned special findings to the effect that plaintiff’s injuries were caused by the failure of the defendant to furnish a sufficient number of men to safely handle the ca'r, that the danger of handling the car by an insufficient number of men was only partly realized by the plaintiff, and that complaint of this lack had been made by him to the foreman. There was also a finding that after the injury three men lifted the car back upon the rails.
It is first contended that the evidence does not sustain the finding that a sufficient number of men to safely place the car back on the track were not fur nished. It appears that four men lifted the car off the track and that after the plaintiff was hurt three men lifted it upon the rails. There was a grade at the place where the car was removed from the track and hence it was easier for the four men to carry it down the grade than it was for them to lift it up the grade and upon the track. Even if the place had been level and the four men had succeeded in lifting the car and the load off the track it would not necessarily follow that four men were a sufficient force to handle the car under ordinary circumstances. Men can not always lift their utmost or exercise the full measure of their physical strength with safety. Neither is the finding that three men placed the car on the rails absolutely inconsistent with the one that enough men for the required task were not provided. The car and load had been lifted up the grade and upon the track before the three men undertook to lift it upon the rails. In the nature of things that was a much easier task than to carry the load up the grade, and even the effort of the three men to lift it upon the rails may have required an extraordinary exertion of strength which could not be repeated with safety.
There is a further contention that the plaintiff was well acquainted with the nature of the work, the number of men engaged with him; that he was necessarily cognizant of the risk of doing the work with four men, and therefore that he must be deemed to have assumed the risk. Some stress is placed upon the finding that he partly realized the danger of the situation and of the work as it was conducted. To bar him from a recovery on this ground he must not only have known of the existing situation and conditions but he must also have realized and appreciated the danger of continuing the work. (Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 100, 140 Pac. 105.) The finding-implies that he did not fully realize the danger of the undertaking; besides, the conditions were not continuous and uniform, and he could not well measure the weight or realize the risk in handling a car carrying loads of varying weights. On this occasion there were on the car planks and tools which added appreciably to the weight of the load. The difference in the place where the lifting was to be done, including the grade, added another element to the problem. Then there was the fact that the plaintiff had little time to measure the weight or consider the risk. In lifting the car off the track the plaintiff discovered that with the planks on the car the load would be too heavy for them to lift it from the lower to the higher place, and he, as well as those with him, suggested that the load be lightened by taking off the planks that were on the car. The foreman, however, in a peremptory order accompanied by an oath directed them to lift the car at once with the planks and tools on it. Under these circumstances there was little time or opportunity for the plaintiff to decide whether the car, loaded as it was with planks and tools, could be safely carried up the grade by four men. The notice as well as the time for reflection was short, and therefore the jury had some ground for finding that the plaintiff did not fully realize the danger which he encountered in the effort to obey the order. Under the testimony and findings it can not be held that a recovery is barred because of the assumption of risk by the plaintiff.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Did the district court correctly rule in ordering the removal of an action involving about $50,000, begun by a domestic corporation against a foreign corporation doing business in this state, from the state to a federal court? is the sole question presented on this appeal.
On July 13, 1914, appellant, The Shawnee Fire Insurance Company, a Kansas corporation, commenced an action in the district court of Shawnee county against the appellee, The National Surety Company, a New York corporation doing business in this state, to recover about $50,000 alleged to be due from appellant’s general agents and appellee as surety on the bonds of such general agents. A petition and bond for removal were duly filed in the district court, and only a brief notice of the time of hearing was given, but both parties appeared at the hearing. The appellant’s objections, first, “that the petition did not state sufficient facts to justify the state court in granting the order,” and,' second, “that the notice of the petition to remove had not been made as required by law,” were overruled, and the court approved the bond and ordered the removal of the action.
On this appeal the appellant contends that the filing of the written consent as provided for in section 4122 of the General Statutes of 1909 irrevocably waives the right of removal of an action to a federal court from the state courts, whereas appellee insists that such written consent does not comprehend an irrevocable waiver of the right of removal of an action, and further, that if so construed such statute would be in violation of the “federal constitution and statutes enacted pursuant thereto” and therefore void.
The statute provides that foreign surety companies are authorized to do business in this state and that such companies may be admitted into the state upon the same terms and conditions under which foreign life insurance companies are permitted to transact their business in the state. (Gen. Stat. 1909, § 1931.) The statute relating to foreign life insurance companies provides that such companies can not transact any business in the state unless they first obtain a certificate of authority to do so from the superintendent of insurance. Then there is the further provision that:
“Every such company, on applying for admission and authority to transact business in this state, and as a condition precedent to obtaining any such authority, shall file in the insurance department its written consent, irrevocable, that actions may be commenced against such company in the proper court of any county in this state in which the cause of action shall arise or in which the plaintiff may reside by the service of process on the superintendent of insurance of this state, and stipulating and agreeing that such service shall be taken and held in all courts to be as valid and binding as if due service had been made upon the president or chief officer of such corporation. Such consent shall be executed by the president and secretary of the company, authenticated by the seal of the corporation, and shall be accompanied by a duly certified copy of the order or resolution of the board of directors, trustees or managers authorizing the said president and secretary to execute the same. Actions against any such insurance company may be brought in any county where the cause of action arose or in which the plaintiff may reside.” (Gen. Stat. 1909, § 4122.)
The contention of appellant is that the consent referred to, in which the company agrees that actions against it may be commenced in the county, in which the cause of action arose or in which the plaintiff resides, is an effectual waiver of the right of removal to the federal courts. The purpose of the legislature in enacting the provision must be derived from the language used in it. It will be observed that the consent and agreement spoken of relates only to the courts in which actions against the company may be commenced and does not profess to prohibit the removal or appeal of cases that have been commenced in the proper court. It may be assumed that the legislature understood that the acts of congress authorized the removal of certain suits from state to federal courts, and also that the power of congress to provide for such removal is supreme, and it may also be assumed that the legislature knew that any provision which it might enact could not limit the jurisdiction conferred by congress on federal courts nor deprive parties of the right of removal which the acts of congress expressly give. If the legislature had contemplated action so radical as an attempt to restrict or impair the right of removal it certainly would have used different language and have gone farther than to require consent that actions against foreign insurance companies should be begun in the court -in the county where the cause of action arose or where the plaintiff resided. It has been determined that while a state may revoke the authority of a foreign insurance company for the removal of an action brought against it, there is no power in the state to restrict the jurisdiction of the federal courts or to deprive the company from availing itself of that jurisdiction through the exercise of the right of removal granted by congress. As the state has the power to admit or exclude a foreign corporation at its option, any permit previously granted may be revoked for removing arcase to the federal courts where the statute makes such removal a ground for revocation of authority or of exclusion from the state. The same authorities hold that a state statute exacting an agreement in advance not to remove a case is void. (Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. Ed. 148; Barron v. Burnside, 121 U. S. 186, 7 Sup. Ct. Rep. 931, 30 L. Ed. 915; Security Mutual Life Ins. Co. v. Prewitt, 202 U. S. 246, 26 Sup. Ct. Rep. 619, 50 L. Ed. 1013; Western Union Tel. Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. Rep. 190, 54 L. Ed. 355; Harrison v. St. L. & San Francisco R. R., 232 U. S. 318, 34 Sup. Ct. Rep. 333, 58 L. Ed. 621.)
Where a statute is open to a construction that will uphold its validity that construction will be given to it rather than one which would bring it into conflict with the constitution. It is argued that the requirement of consent that actions shall be commenced where the plaintiff resides indicates a purpose on the part of the legislature that cases should not only be commenced but should also be finally determined in the place most convenient to the plaintiff, and where he would be put to little expense or trouble in procuring the attendance of witnesses and in attending court near his home. It would not be contended that the provision would prohibit a change of venue in such cases if statutory grounds for a change were shown to exist, and yet if a change were granted the plaintiff and his witnesses would be compelled to go to a county other than that of his residence. Neither does it preclude an appeal from a judgment rendered against a company in the county of the plaintiff’s residence, and in that event he would be required to follow his case to the capital of the state, which might be remote from the county of his residence. The statute provides a restriction as to where such actions shall be begun, but does not, either expressly or by implication-, provide that every step in the litigation must be in the county where the actions are instituted. The statute does not purport to except such cases from other statutory provisions providing .for change of venue, or. appeal, or removal to the federal courts.
An argument against removal is based on the provision of the general corporation act, to the effect that foreign corporations admitted to do business in the state shall be subject to the same judicial control as domestic corporations. (Gen. Stat. 1909, § 1724.) They are subject to judicial control in the sense that they may be sued in the state, and that the laws of the state applicable to them may be enforced against them in the courts. Some of our laws which apply to one class of domestic corporations are not applicable to others, and yet all are subject to judicial control. In like manner foreign corporations admitted to do business in the state, although creations and citizens of another state, are subject to the laws of Kansas applicable to them, and these may be enforced against them in the courts. Judicial control may be exercised by federal as well as state courts, and in some cases domestic as well as foreign corporations may be brought within the jurisdiction of federal courts, and cases brought against either of them in state courts may, where grounds exist, be removed to the federal courts. The provision relating to judicial control does not restrict or impair the right of removal of actions against foreign corporations to the federal courts. '
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
MASON, J.:
G. F. Smith was injured while in the employ of the Western States Portland Cement Company. He recovered a judgment under the factory act, and the defendant appeals.
The plaintiff’s duties required him to work about a conveyor box — a long wooden box twenty inches wide and two feet deep, through which clay was conveyed by the revolution of a large auger or screw, extending for its entire length. He stepped into the box at a place where it was not covered, and the motion of the con- ■ veyor so crushed his foot and leg as to require amputation. The liability of the defendant is based upon its omission to provide a cover for the box at the place where the accident occurred. The defendant maintains that the evidence conclusively showed that a cover was furnished, but that the plaintiff neglected to put it in position. He testified that there was a piece of board near the place, but that it was too long to be used for that purpose. A finding was therefore warranted that the defendant had violated the statute by failing to safeguard the conveyor by providing a covering for it. The contention is also made .that the defenses of contributory negligence and assumption of risk were available to the defendant. This is based, however, on the theory that the injury was not due to the violation of the statute, and we think the evidence made that a fair question for the jury.
Complaint is made of the refusal of an instruction the purport of which is shown by these concluding words:
“If after having fully and conscientiously considered all the evidence in the case, guided by the law as given by the court, and in full, fair and patient consultation with your fellow jurors, any one of you should nevertheless find yourself at variance with the others, as to any material question to be satisfied by the verdict, you should not yield your decision, simply because your fellows are of a different view, or that the majority are against you.”
It has been held that in a prosecution for murder error may be committed in denying a request to instruct the jury to the effect that each juror must finally act upon his own individual judgment. (The State v. Witt, 34 Kan. 488, 496, 8 Pac. 769.) But it has also been held that in a civil case the same strictness is not required, and that the refusal of such an instruction is not reversible error where it does not appear that there was any special necessity for it. (C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 381, 21 Pac. 276.) There seems to be nothing in the present case to take it out of the ordinary rule in this regard.
The plaintiff never filed any statement with the see-retary of state regarding the matter, and therefore must be regarded as having chosen to accept the provisions of the workmen’s compensation act. The defendant, however, had duly elected not to be brought within its operation. It is maintained in behalf of the defendant that in this situation the plaintiff had no remedy outside of the workmen’s compensation act— that that statute repealed the factory act. It has been determined that an injured employee has no other remedy against his employer than that given by the workmen’s compensation act where both have elected to’ accept its provisions. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193.) The factory act, however, is not repealed. It remains in full force, but it can not be invoked by an employee to whom the benefits of the workmen’s compensation act are available, and who has actively or passively signified his acceptance of its benefits. The workmen’s compensation act clearly contemplates that compensation for injury to a workman shall be made under its provisions only where both the employer and the employee have elected to be governed by it. This is implied by the option given to each to accept or reject it. Where one accepts and the other rejects it certain enumerated consequences follow (Laws 1911, ch. 218, §§ 46, 47), but no action can be sustained under it. Here the employer elected not to come within its provisions! He was exempt from liability under it, notwithstanding any action the employee might take, and having escaped its burdens, he necessarily lost the rights to invoke its benefits.
The judgment is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
Lane, who was defendant below, seeks in this case to review an order of the district court granting a new trial. The facts are these: Defendants in error brought their action against Lane before a justice of the peace. A jury trial was had. Verdict and judgment were for the plaintiffs. Lane appealed. In the district court another jury trial was had, and the verdict was in favor of Lane. The district court sustained a motion for a new trial, and this is the ruling now presented for review. The district court overruled all the grounds for a new trial except one, misconduct of the jury. ■Upon this it granted a new trial. The misconduct was this: The foreman of the jury in the justice’s court was a juror in the trial in the district court. He was called as a talesman, and on his voir dire testified that he knew nothing of the case, etc., and was not challenged. The plaintiffs and their attorney had forgotten that he had served on the trial in the justice’s court, though they were present at that trial, and did not become aware of the fact until after the jury had been impanneled and the trial commenced. Before this juror was called one had been challenged because he had served on the trial below, and the transcript of the proceedings in the justice’s court was passed to and examined by the plaintiff’s counsel at that time. Upon this transcript appeared the name of the juror, for whose misconduct the new trial was granted, as foreman of the jury. The counsel doubtless overlooked this, and rested with the testimony of the juror on his voir dire.
Ought the ruling of the district court granting a new trial to be reversed? That the juror was incompetent, and that his service on the former jury was cause for principal challenge, is settled by the statute. Gen. Stat. p. 680, Code, §270. On the other hand, it is clear that if the plaintiffs knew of his disqualification, and failed to challenge, they waived all objection: 2 Gra. & Wat. on New Trials, 467; Fox v. Hazleton, 10 Pick. 275; Barlow v. The State, 2 Blackford, 114; Glover v. Woolsey, Dudley, (Geo.) 85; Jeffries v. Randall, 14 Mass. 206; Booby v. The State, 4 Yerger, 111. But the point here is, that the plaintiffs were ignorant of the disqualification, having forgotten that the juror had served on the prior trial, then some ten months past, and that they resorted to the ordinary means of ascertaining his disqualification by ex amining him on his voir dire. In Barlow v. The State, supra, some of the grand jury who found the indictment were called and served as petit jurors. It was held that the objection was not good, on a motion for a new trial, although the defendant had forgotten the fact which disqualified when the jury was impanneled. The court says: “Here the defendant had once known that these men were on the grand jury. The statement of his not recollecting it, is insufficient. An affidavit to that effect could never be disproved.” See also, State v. O’Drescoll, 2 Bay (S. C.) 153. In the case cited above from Dudley’s Reports, the juror was security on the appeal bond, and though the party swore he was ignorant of the fact, it was held to be gross negligence not to be aware of it, and the objection to the juror was too late. In Jeffries v. Randall, supra, no inquiry was made of the juror on his voir dire, and the party was held to have waived any objection to him.' In Rollins v. Ames, 2 New Hamp. 349, it appeared on the motion for a new trial that one counsel was at the time of impanneling the jury unapprised of the disqualification, but it did not appear whether the party or his other counsel were also ignorant, and the motion was overruled. In the case in 4 Yerger, 111, the affidavit of the juror, that he believed the party was not aware of his disqualification, was held insufficient to show the party’s ignorance. On the other hand, in Williams v. McGrade, 18 Minn. 82, where there were two trials, and a juror called and served on the second who had also served on the first trial, although the clerk’s minutes showed the fact, yet, as nearly three years had elapsed between the two trials, and the juror on his voir dire disclaimed all knowledge of the case, the objection was held good on a motion for a new trial. In Rice v. The State, 16 Ind. 298, a grand juror was called as a petit juror. On his voir dire he swore that he had formed no opinion, etc. A motion for a new trial was sustained, and the court say: “Here the accused undertook to test the juror’s freedom from bias, and being answered by the juror that he had formed no opinion on the case, he was not required to go further and ascertain whether he had been on the grand jury, or whether he was under any other disqualification.” See also Herndon v. Bradshaw, 4 Bibb, (Ky.) 45.
There is, it will be noticed, not entire harmony between the authorities. It seems to'us that these propositions, which find support in the later authorities, are just and reasonable: Where a juror is called, and upon his voir dire testifies that he has no knowledge of the case, a party is ordinarily justified in resting on such testimony. Where there is no reason to suspect the juror who has thus testified, a party is, though there has been a former trial, under no obligations to examine the record of such trial to ascertain whether the juror did not serve upon such trial, nor is he ordinarily chargeable with gross negligence or laches in forgetting the fact of such service. Tried by these rules, the decision of the district court is correct, and must be sustained. We are aware, as counsel suggest, that, as the first jury found in favor of plaintiffs, suspicion might be aroused as to the actual forgetfulness of plaintiffs and their counsel; but the district court was satisfied of the truthfulness of their statements, and we have no right to question it. It seems from the affidavits that defendant’s counsel was equally forgetful. We notice also that plaintiff’s counsel had just examined the justice’s transcript in reference to another juror. All that can be inferred from this is, that as to that juror the counsel had some suspicion, either from what the juror said or otherwise, that he had served upon the prior trial; not that he was bound to have the same suspicion, or make the same examination, as to each succeeding juror. The ruling of the district court was in favor of a new trial, and that, as often decided, is entitled to more consideration in this court than one refusing a new trial.
The order of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover' damages for injuries sustained while employed in the defendant’s coal mine, because of alleged negligence of the defendant in failing to keep its mine free of standing gas, and failing to have plaintiff’s working place carefully examined by a competent fire boss, and failure to supply a sufficient amount of air to dilute the accumulating gas. (Gen. Stat. 1909, §§ 4986, 5005, 5006.) A demurrer was sustained to the plaintiff’s evidence, and afterwards a new trial was granted and the defendant appeals.
Plaintiff testified that while working in the room gas which had accumulated therein ignited and burned his face and burned and blistered his arm; that he held his breath as long as he could and then fell over; that in about a week or two his face peeled off, and did not bother him. His eyes were weak and felt as if there was something in front of them; that he was. at the house about nine or ten days; that his arm was blistered, the worst burn being on the muscle. He continued to have it dressed for eighteen or twenty days, the flesh was removed every time the clothing was changed; went back to work in a few weeks but his arm and hand would cramp, and after two or three weeks he quit, his arm being too painful. It was six weeks after the injury that he earned money as a coal miner; before the inj ury he was physically strong; another miner some six months before this injury had been burned eight or ten hundred feet from where the plaintiff was injured; the plaintiff had seen persons burned in the mine before the person just mentioned, but not as badly burned; that where gas is not generated in mines and does not accumulate so as to become standing gas it is not a rule to put on a gas man. The plaintiff was not expecting to encounter gas as there was nothing to indicate that it was there. “The explosion went to the top and bottom and to the face and back.” Plaintiff had seen gas in this mine before in similar quantities, sometimes in drill holes- and sometimes in the top. Another witness testified that on one occasion previous to the injury there was an explosion, either of powder or gas, ignited by his lamp. “I think it came from the gas that was in the hole where the fuse was put in, there was standing gas in the place.” Another witness testified that he was burned in the same mine at another time after the plaintiff was injured. On cross-examination he testified that the occasion when he was burned was before the plaintiff was burned, that he told a man in the office on top about the burn. Another testified that before the plaintiff’s injury, he observed a lighting of gas in the same mine, something like fifteen hundred feet from where plaintiff was injured; that there is no well defined meaning of the term “standing gas” and there is no way of telling the amount of gas without an instrument to test it, which testing could be done successfully by a fire boss. The defendant admitted that it had no fire boss in the mine in question “because none was needed.”
The defendant contends that the statute merely requires that an examination be made when the operator knows that the mine is generating fire damp or has been generating it in such quantities as to make a reasonable person know that it was doing so; that where persons have operated a mine for several years without knowledge or notice of the generation of fire damp they are not held responsible for a sudden and unexpected slight explosion, and that the testimony showed the existence of no standing gas.
In Cheek v. Railway Co., 89 Kan. 247, 131 Pac. 617, it was held that sections 4986 and 5006 require that coal mines generating fire damp shall be carefully examined every morning with a safety lamp by a competent fire boss before the miners enter their respective working places and apply to all mines generating such gas in appreciable quantities, “the purpose being to detect the gas as soon as it appears so that danger from it may be averted.” (Syl. ¶ 2.) It was also stated that the full purpose of the requirement of examination for gas every morning was to protect mine workers from explosions of quantities of gas which a competent examination by a competent person would reveal. (Syl. ¶3.)
Section 4986, enacted in 1883 (Laws 1883, ch. 117, §5), requires all mines generating fire damp to be kept free of standing gas, and that their every working place shall be carefully examined every morning with a safety lamp by a competent person before any workman is allowed to enter therein. Section 5006, enacted in 1897 (Laws 1897, ch. 159, § 4), makes a similar requirement, and provides that the hydrogen or fire damp generated in working places must be diluted and rendered harmless before persons are permitted to enter such place with a naked light. It is argued that the slight and infrequent discoveries of gas in the defendant’s mine were too trifling to bring it within the statute. But since two persons within about one year’s time were burned in the same mine, from eight to fifteen hundred feet separating the places of the two injuries, it is impossible to say that the amount of gas was not appreciable. Manifestly, the object of the statute was to protect miners from injuries as well as from fatalities, and it is a well-recognized fact that while mines containing horsebacks often manifest the presence of gas in a comparatively slight degree, nevertheless in other instances in such amounts that its ignition would mean serious injury. But without attempting to define accurately the term “standing gas” or to construe more particularly the statutory provisions involved, it is sufficient to say that the record contains testimony touching the amount of gas in the mine and the injury of the plaintiff which.was proper to go to the jury, and the granting of a new trial was not error.
The order is therefore affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the defendant to construct an undergrade street crossing. The cause was referred to a commissioner who was directed to return findings of fact and conclusions of law. His report is appended hereto. •
The ultimate conclusion of fact, that the action of ' the city in ordering the subway was not without support in reason and consequently was a valid exercise of legislative power, is advisory only. The conclusion of law depends entirely upon the character of the ultimate conclusion of fact. The conclusion of fact having been challenged by the defendant, the court is required to exercise its own judgment and derive its own inference from the specific facts found in detail.
In cases of this character it is not enough that there be a scintilla of reason for the enactment of the ordinance which is assailed, which the report as a whole shows was all the support the commissioner was able to find for the ordinance under consideration. The question is whether or not, considering the entire situation and all the circumstances, the action of the city so far fails to measure up to the fair and just and reasonable as to make it clear that such action is arbitrary, capricious, unreasonable, and oppressive. (City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161.) If the change of grade of both Congress street and State street by the ordinance of 1912 had been followed by a single ordinance requiring subways on both streets, it could not be doubted that such action would have been manifestly unreasonable. A subway upon one or the other of these streets could be justified, but no occasion existed, suggested by the progress of the city’s development, past or prospective, or by the public safety and convenience, which suddenly demanded the construction of two subways on opposite sides of the same narrow block, costing between forty and fifty thousand •dollars. The city can not by indirection do that which would have been clearly unreasonable if undertaken directly. Nothing would be gained by debating the facts further than the commissioner has done, and the court concludes that the ordinance is unreasonable and void.
The city contends that it has the right to stand upon the naked statutory power to require subways, and cites in support of its contention those decisions which hold that when particular municipal power is conferred by statute the legislature has settled the question of the reasonableness of ordinances enacted pursuant to the grant. The subject is,alluded to in section 600 of Dillon on Municipal Corporations, which reads as follows:
“Where the legislature, in terms, confers upon a municipal corporation the poiver to pass ordinances of ■a specified and defined character, if the power thus delegated be not in conflict with the Constitution, an ordinance passed pursuant thereto cannot be impeached’ •as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done cannot be set aside by the courts because they may deem it to be unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid.” (Vol. II, 5th •ed., p. 943.)
Like all attempts to draw a circle which shall be the unit of measurement of angular facts, the text quoted is •only approximately successful and has sometimes been applied without discriminating care. Statutes of the first class may be illustrated by those which authorize cities to impose penalties for the violation of ordinances relating to specified subjects in a sum, for example, not less than five dollars and not more than five hundred •dollars. An ordinance imposing fines anywhere within the statutory limit must be regarded as reasonable. A statute which authorizes cities to regulate the speed of trains within prescribed rates of speed belongs to the same class. The reasonableness of an ordinance which does not transgress the statutory limits can not be questioned because the legislature has defined its precise character. Where a statute forming the charter of a city expressly provides that the city may compel any. railroad to erect gates at any and all street crossings, the reasonableness of an ordinance requiring gates at particular crossings can not be investigated by the courts because the legislature has established the definite policy of gates at all crossings without leaving the determination of the question of what the public safety and convenience demand to the city. (Chesapeake & O. Ry. Co. v. City of Maysville, 24 Ky. Law, 615, 69 S. W. 728.) These illustrations are sufficient to indicate the true meaning and proper application of the rule. ■
The statute relating to viaducts and subways at street crossings in cities of the second class is of the kind referred to in the latter part of the text quoted. The particular provision is found in a general grant of power to regulate the crossing of railway and street-railway tracks, and declares that the mayor and council or mayor and commissioners shall have power to compel railway companies owning or operating railroads or street railroads to erect, keep in repair, and reconstruct such viaducts over or tunnels under streets or tracks as may be deemed and declared by the mayor and council or mayor and commissioners to be necessary for the safety or convenience of the public. (Laws 1913, ch. 106, § 1.) The legislature did hot determine that the public welfare requires the construction of viaducts or subways at every railroad or street-railway crossing which may be designated by city ordinance. If it had done so, the instance of the branch line of railroad used as an illustration by the commissioner, to say -nothing of the plight of street railways generally,might raise the question of the constitutionality of the statute. Instead of this, as in most statutes specifying matters upon which cities may legislate, the subject of the necessity for viaducts and subways as means for promoting public safety and convenience ’ was committed entirely to the governing body of the city for such legislative action as its sound judgment and wise discretion may suggest. Should a city upon due consideration conclude that the public welfare requires the construction of a particular viaduct or subway, procedural methods are prescribed for obtaining the desired ends. But the propriety of a viaduct or of a subway as a means of satisfying the public need at some particular crossing is not settled in advance by the legislature but must be determined by the city for itself in the light of all the facts which should appeal to fair and candid minds. As the commissioner points out, the statute is merely declaratory of a power which existed before the statute was enacted — the same power which without the statute sustained the ordinance of 1912 requiring the building of the first subway.
As this court said in the case of Swift v. City of Topeka, 43 Kan. 671, 23 Pac. 1075, the tyranny of the American system of government very largely consists in the action of municipal authorities, and the judgment and discretion contemplated by the statute are that lawful judgment and that lawful discretion which must always be restrained within the boundaries of reason. (Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719; Crawford v. City of Topeka, 51 Kan. 756, 33 Pac. 476; Kansas City v. McDonald, 60 Kan. 481, 484, 57 Pac. 123; Paola v. Wentz, 79 Kan. 148, 98 Pac. 775.)
In Anderson v. City of Wellington, supra, it was said:
“The power to pass a city ordinance must be vested in the governing body of the city by the legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation —not simply convenient, but indispensable. . . . In addition to this, the ordinance must be reasonable; not inconsistent with the laws of the state; not repugnant to fundamental rights; must not be oppressive; must not be partial or unfair; must not make special or unwarranted discriminations, and must not contravene common right. These restrictions upon the power of the common councils of cities in this country have been frequently imposed, and almost universally recognized in all the courts of last resort that have expressed opinions upon the subject.” (p. 176.)
In the case of Paola v. Wentz, supra, the syllabus reads:
“Assuming that the question whether a shade tree growing in the street should be removed is one to be determined by the city officers, not subject to review by the courts, yet in order for their determination to-be conclusive it must be made fairly and in good faith; if made arbitrarily, action under it may be enjoined as an abuse of discretion.” (Syl. ¶ 1.)
Whether or not an ordinance is void because unreasonable is a question of law (Lebanon v. Zanditon, 75 Kan. 273, 89 Pac. 10), and in determining the question of reasonableness “ ‘The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed are under a solemn duty — to look at the substance of things whenever they enter upon the inquiry whether the [legislature or a city council] has transcended the limits of its authority’ ” (City of Lyons v. Cooper, 39 Kan. 324, 328, 18 Pac. 296).
The city argues in its brief that its action may be-rested upon the contract right created by the ordinance of 1899. The petition presents no such claim. Beyond this, the ordinance of 1899, which contained no reference to a subway, took the place of an unaccepted ordinance of 1898 providing for a subway at State street,, and the general language of the ordinance of 1899 did not bind the defendant to obey directions falling out side the scope of the city’s power because unreasonable. Without the contract the city could do whatever the public safety and convenience demanded. With the contract it could do no more. Furthermore, if it were a mere matter of compelling compliance with a contract, the court would exercise its discretion over the issuance of the writ of mandamus in such a way that its process would not be turned into an instrument for the accomplishment of the’ unreasonable and the unjust. (The State, ex rel. Wells, v. Marston, 6 Kan. 524; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127; The State, ex rel., v. Stevens, 23 Kan. 456; Rice v. County Board of Canvassers, 50 Kan. 149, 153, 32 Pac. 134; City of Potwin Place v. Topeka Rly. Co., 51 Kan. 609, 33 Pac. 309.)
The plaintiff further contends that the principles of law which led the court to award a writ of mandamus compelling the defendant to construct a subway at Congress street (City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161) require a judgment compelling the defendant to construct another subway at State street, two hundred and eighty feet away.
The principles of law announced in the former case are sound and are adhered to in every particular. That case, however, was decided on a motion for judgment nn the pleadings, and a radically different state of facts is disclosed by the present record.
In the former case the fill across Congress street and State street on which the defendant’s tracks are laid appeared to be an unlawful obstruction to travel. It was admitted that benefit would result from the opening of Congress street. The defendant being a wrongdoer was not in position to ask the court to weigh the public benefit resulting from an abatement' of its barricade. The natural result of the removal of the fill was an overhead railway crossing. The details of the proposed plan were not criticized, public safety and convenience would be measurably promoted, and the defendant, being called upon to obviate in a practicable way the consequences of its own wrong, was not in position to complain of the cost. The opening of another street crossing in that vicinity between the portions of the town separated by the defendant’s tracks was well within the city’s power. A subway was not beyond the pale of reason although street crossings of that character are very expensive, and the location of a costly structure of that kind, whether at Congress street or at State street, was a matter for the city to determine according to its best judgment. It now appears that the railroad tracks were laid on Third street under an ordinance granting the use of the street for that purpose and on a grade either established by or satisfactory to the city. This grade was recognized and fixed by ordinance in 1889, remained the lawful grade until the plaintiff conceived its subway schemes in 1912, when the grade was lowered eighteen feet, and considerable sums of money were expended on the faith of the ordinances establishing the original grade. For many years, during which conditions have remained practically constant, the demand for any new crossing at all in this vicinity has not been great enough to invoke positive action by the various city administrations, all charged with the promotion of the public welfare. The duty of the defendant to make State street usable is not disputed, and the sole question before the court is the reasonableness of the proposed method. Shall it be by a subway costing something less than twenty-five thousand dollars when a grade •crossing can be put in for less than three thousand? The elements to be considered are the amount of traffic, the public safety, and the public convenience. The commissioner states that a grade crossing will so nearly answer all the demands of traffic that an order to build the subway would be confiscatory. The amount of traffic being so small, opportunities for injury from a grade crossing and inconveniences from standing or passing trains are correspondingly reduced in number. Whatever need there may be of communication between the portions of the city lying north and south of the defendant’s tracks and east of Neosho street, free from such delay as the defendant’s trains occasion and free from such dangers as are incident to a grade crossing, is well supplied by the subway already built, and the cost of another subway but a single block from the first is entirely disproportionate to the benefits it would confer. As the commissioner suggests, the public need would assume an entirely different aspect if the city were spending its own money instead of the money of a railway corporation. The result is the ordinance requiring the second subway is quite arbitrary and without fair or substantial basis in reason.
The mislocation of the subway at Congress street and the expenditure of money in improving State street at the grade established by the preliminary ordinance of 1912 are regrettable consequences of the city’s arbitrary determination to force the defendant to put in a series of subways, which must fall upon the city. They are not facts to be considered in determining the reasonableness of the city’s conduct.
The writ is denied.
Report of Commissioner.
“statement.
“The defendant railway company has occupied for more than forty years Third avenue in the city of Emporia as its right of way for tracks and switches, under an ordinance more specifically set out in the findings. Its tracks are laid upon an embankment, which obstructs traffic at the intersection of State street. The city of Emporia passed an ordinance by the terms of which the defendant was required to open State street and construct a subway for traffic underneath its tracks. The defendant refused to comply with this ordinance, and this action in mandamus resulted. Responding to the writ, the defendant has set up that such proposed subway would incur a great expenditure on its part, and by reason of its location and surroundings, and by reason of the fact that it has just completed a similar subway at a point less than one hundred yards distant, and that by reason thereof and other facts set out more in detail in the findings, the action of the city council deprives it of property without due process, and violates other constitutional privileges. A claim was also set up that a conspiracy existed among the city officials of Emporia to oppress the defendant, and that this action was in pursuance thereof and was conceived in malice and prompted by bad faith and improper motives. This defense has been abandoned.
“The only question of fact in the case, then, is whether or not, under the rules of law applicable thereto, the action of the city of Emporia amounts to such an abuse of power as to render it void. In order that the court may have the benefit of the facts upon which the conclusion of the commissioner is based, some of these facts are set out in the accompanying findings.
“FINDINGS OF FACT.
“I. The defendant company has occupied Third avenue in the city of Emporia from the east to the west end of the town as its right of way for tracks and switches for more than forty years. Its right upon this avenue is not contested except in so far as it may obstruct cross streets. The title to the right of way, subj ect to the license of the defendant, is in the public.
“II. The ordinance which gave to the defendant, the right to use Third avenue was passed in January, 1870, and confers upon it—
“ ‘The privilege and authority to construct a single track for its railway through the said town from east to west upon either of the avenues of said town south of Fourth avenue, and upon the center of the avenue upon the grade which shall hereafter be established by the city engineer, under the authority of this board, and the said company shall have the privilege and authority of maintaining and operating said railway track so constructed, forever, for the uses and purposes for which the same shall be constructed. . . . And the said company shall put- in and maintain good and proper crossings, wherever the said track shall be crossed by the streets of said town.
“ ‘That if the said railroad company shall file its acceptance of the privileges conferred by this ordinance within thirty days from its passage, the inhabitants of the town of Emporia shall be thereafter forever barred hereby.
“ ‘That as soon as said railroad company shall have signified in writing to the chairman of the board, the avenue through which it proposes to build its railway, said chairman shall direct the city engineer to at once proceed to establish the grade of said avenue, which, being so established, the railroad company may thereafter at once proceed to construct said railway upon said grade.
“ ‘That nothing contained in this ordinance 'shall be construed as relinquishing, qualifying or exhausting any power conferred by law on this board in controlling said railroad company in the operation of said road through said town.’
“It is also provided that the company shall never operate its trains at more than six miles per hour, which still is effective.
“There does not seem to be any one who knows whether or not a grade was actually established by the city authorities at this time. The first record of a grade is that hereafter referred to, made in 1889, which is at the top of the embankment upon which the tracks are laid. It is a fact, however, that this ordinance was accepted, and that shortly thereafter the defendant did lay its tracks upon Third avenue in the city of Emporia, upon an embankment of the present height. It is probably safe to assume as a fact that the terms of this ordinance were complied with, since there is no record of any objection or protest being made to the establishment of the tracks where they now are, and no intimation that they were constructed without the city having established a grade as agreed to in this ordinance.
, “III. Accompanying this report, and as one of its findings, is a sketch of the streets, and the distances between them, which cross the tracks in the vicinity of State street. Alleys have been platted, running north and south through the blocks on each side of the tracks, but none of them has ever been opened, but are obstructed by the tracks of the defendant.
“IV. There is no record of any grades having been established by ordinance on any of the streets in this vicinity prior to the year 1889. In that year an ordinance was passed which established the grade upon State street (the one in controversy), which carried the proposed line of the surface of the street from Second avenue with a gradual rise to the top of the defendant’s embankment on Third avenue, and from Fourth avenue with a gradual rise to the top of the defendant’s embankment.
“The actual level of the ground is some ten feet on the south and seven feet on the north below the top of this embankment. The defendant’s track was located upon the general level of Third avenue, which is almost level clear across town, with the exception of a draw at Congress and State streets, which made this embankment necessary to overcome.
“There are now four tracks upon this embankment at this place; it is not in evidence j ust when these tracks were laid, but at least two of them were laid since 1889.
“The 1912 ordinance changing the grade lowers the grade of State street at its intersection with Third avenue about eighteen feet below the grade of 1889.
“V. In April, 1898, an ordinance was passed granting to the defendant the right to remodel and extend its switches on Third avenue. One paragraph of said ordinance provided:
“ ‘That said railroad company shall at its own expense within one year from the taking effect of this ordinance construct a subway under said railway tracks on said Third avenue at its intersection with State street.’
“This ordinance had a provision that it should only be binding upon a written acceptance filed by the defendant. It is admitted that no such acceptance was filed.
“The next year, however, in 1899, an ordinance was passed and accepted in writing, and acted upon by the defendant, which carried, with one small exception, the same rights as did the 1898 ordinance referred to above.
“The clause referred to above with reference to constructing a subway was not carried forward into the 1899 ordinance. Otherwise the' ordinances are almost identical in phraseology. One paragraph of the ordinance of 1899, which is still effective, and which was also present in the ,1898 ordinance, is as follows:
“ ‘That after the construction of said additional tracks and switches, the said railway company shall restore said Third avenue to such a condition as that the construction and maintenance of such additional tracks or switches shall in no wise interfere with or obstruct the free and public use of said Third avenue at all points ■where the same is intersected and crossed by other streets and the said railway company shall at all times keep the crossings of said Third avenue where the same is intersected and crossed by other streets in such condition as the city council may from time to time direct and shall not allow their cars to stand on either of the main tracks or side tracks in violation of any existing or future ordinances.’
“This ordinance carries a provision that it is a contract between the city and the defendant.
“VI. Other ordinances, containing clauses similar to the one last quoted, were passed from time to time conferring privileges upon the defendant with reference to additional sidings, tracks and switches.
“VII. State street was a regularly platted and laid out street intersecting Third avenue prior to 1870. Whether there was actually a traveled road, or a crossing, at State street at that time is not shown by the evidence.
“There is evidence that there was no town south of the tracks at that time, nor any regularly laid out roads. ‘The condition of the streets,’ the only witness on the subject put it, ‘was practically that of the naked prairie country.’ There was a farming community both south and southwest of Emporia. The only road mentioned in the evidence meandered in across the prairie from the southwest, and probably crossed Third avenue west of State street. This is the best recollection of the oldest inhabitant; moreover, these prairie roads follow the ‘raises’ and not the ‘draws.’ State street was in a depression. This road, I find, did not cross at State street; whether there was another road that did, is not in evidence.
“Vila. Emporia is a city of the second class.
“VIII. On the 6th day of June, 1911, the city of Emporia passed a resolution to gutter and pave Congress street, which is less than one hundred yards east of State street.
“On the 25th day of April, 1912, an ordinance was passed changing the grade of both Congress and State streets down to a point some eighteen feet below the top of the defendant’s embankment on both streets.
“On the 30th day of April, 1912, the city passed an ordinance to open Congress street and to compel the defendant to construct a subway thereunder.
“The defendant resisted this ordinance in the courts, but a writ of mandamus issued in January, 1913, compelling the defendant to construct a subway at Congress street, which it did that year at a cost of about twenty thousand dollars.
“On the 22d day of May, 1913, the city passed an ordinance to open State street and to compel the defendant to construct a subway under its tracks upon that street, which was amended in form on June 10, 1913. These ordinances are attached to the petition in this case.
“IX. Public notice conforming to the statute of the ordinances changing the grade, of the appointment of appraisers, and of a meeting of the city council to hear objections, the report of the appraisers, and the time and place of such meeting was given by the city. This notice was directed to ‘All owners of property or other persons interested or affected by such change of grade.’
“No allowance was made to the defendant by the appraisers. The defendant company did not appear at such meeting, nor did any other person, to protest.
“Immediately after the amendatory ordinance of June 10, 1913, was passed the city let a contract for the excavation to bring the street to grade, for the paving, the guttering and drainage system, for the work on State street, and work was commenced thereunder immediately. This work has been completed and the paving extends from Second avenue on one side and Fourth avenue on the other down to a point about a hundred feet distant from the defendant’s embankment. This situation is shown by photographs which are attached to this report.
“No formal refusal of the defendant to comply with the State street ordinance had been made at the time this contract was let by the city, but it was understood by the officials responsible therefor that the construction of the subway necessary to connect the two ends of the paving would meet with the opposition of the defendant.
“X. The paving contemplated by the State street ordinance and now constructed extends five blocks south of the railroad embankment, and one block north, at which point it connects with the city’s paving system on the north side; the .Congress street paving is of the same extent and joins with the city’s paving system in the same way as the State street paving. Parts of two blocks of paving will be dead ends, and of little value as paving, without the subway joining them.
“XII. Congress street is located 280 feet east of State street, from inside curbs. Neosho street is 370 feet from center to center of State street. There is a good, serviceable planked grade crossing at Neosho' street. Neosho street is blocked by trains to some extent. The passenger trains that make the station stop block that crossing from three to five minutes. Of these there are twelve that pass through between six in the morning and ten at night and seven between ten at night and six in the morning.
“There are probably between fifteen and twenty freights that pass over Neosho street, none of them, however, stopping regularly across crossings, and the length of time taken to pass across depends upon the length of the train. This time runs from two to four minutes. A flagman is maintained by the defendant at Neosho street.
“XIII. There are other grade crossings east of Congress street and two grade crossings west of Neosho' street.
“XIV. There is a water crane at present located on the west line of State street. As a rule only eastbound passenger trains water there, all freight trains watering in the yards. An eastbound passenger engine watering at this crane would obstruct the grade crossing at State street. During periods of heavy traffic a few of the heavier passenger trains making a station stop at Emporia would block both State and Neosho-streets.
“XV. All trains of defendant company stop at Em-poria. State street is one block from the passenger depot and three blocks from the entrance of the freight yards. Because of this, trains passing over State street are either slowing down for the stop or have not gained great momentum, and the dangers of a grade crossing-are, of course, diminished accordingly. The Harvey eatmg house would obstruct the view, to some extent, of a traveler approaching the railroad tracks from the north on State street.
“XVI. I find that for every purpose of traffic the-Congress street subway serves every one wishing to go from a point east of Congress street and south of the tracks to any point in the city, and from any point in the city to any point south of the tracks and east of Congress street, as well as the proposed State street subway could do. There should be excepted from this finding parties going to or from one block between Third and Fourth avenues on State street. The east side of State street between Third 'and Fourth avenues is a public park; on the other side of the street are five residences.
“XVII. I find that for every purpose of traffic the Neosho street crossing serves any one wishing to go from any point west of Neosho street and south of the railroad to any point in the city, and from any point in the city to any point west of Neosho street and south of the railroad, as well as the proposed subway at State street, excepting for the difference between a subway and a grade crossing. (The same exception as noted in finding XVI should be made here.)
“XVIII. There are 319 houses in the section of Em-poria south of the tracks and west of Congress street which would be served by this subway on any traffic which carried them to points north of the tracks and west of Congress street. Of this number all but fifty-two could be served for every purpose by the Neosho street crossing and other crossings west of there, excepting for the difference between a grade crossing and a subway crossing. (The same exception as noted in finding XVI should be made here.)
“XIX. These fifty-two houses south of the tracks, on traffic carrying them to points on State street north of the tracks and traffic coming from points on State street north of the tracks to these fifty-two houses on State street south of the tracks, would be served by the proposed subway, and without it would be required on such journeys to make a detour of one block either to Neosho street or Congress street.
“XX. Persons wishing to go from the first block north of the tracks to the first block south of the tracks on State street, in the absence of this crossing,’ must make a detour of one block east or west, and from a point on State street either to Second or Fourth avenue.
“But one of the present residents on these two blocks owns a vehicle of any kind. Allowing for the park, there are twenty-one fifty-foot lots in these two blocks, upon which are now located twelve houses. Attached hereto is a census of these two blocks. Owing to the deep excavation necessary to carry this street under the embankment it is physically impossible to get teams or vehicles of any kind from seven out of twelve of these houses down to State street; and it may be added, it would likewise be impossible for these seven houses to reach State street if a grade crossing was established, owing to the fill necessary. Prior to the work done by the city in 1913 these lots were all accessible to the street.
“On the east side of State street south of the tracks is a concrete storm sewer 5% feet square lying at the surface of the ground, which effectually bars any ingress or egress from State street to five out of seven of the lots on that block.
“The result is that there are but five families in these two blocks who would be peculiarly benefited by the subway and who could make use of this street for the purpose of getting vehicles or teams in or out of their properties.
“XXI. A serviceable grade crossing coüld be constructed by the defendant, allowing five per cent grade, but' not. paving the approaches, at this time for $2,837.20. Prior to the excavation made by the city in 1913, this crossing could have been put in for $2,151.40. A grade crossing would put the adjoining lots just about the same distance below grade as the subway would put them above grade, and as far as access to their premises and the problems of drainage and the steepness of the incline are concerned the situation is not materially different. The adjoining properties, which would be below grade, probably are more seriously affected, from aesthetic considerations, than the same lots the same distance above grade.
“XXII. That part of Emporia lying south of the tracks has grown very little, if any, in the last ten or fifteen years. The section is devoted to the homes of laboring people of the city, many of whom are employees of the defendant. The main part of the city, both as to residence and business, is north of the tracks. The business section is east of Congress street, and half or more of the residences are east of Congress street. There are some scattering business houses south of the track, one grocery store which does considerable business, and several 'smaller businesses. There are two schoolhouses south of the tracks, one of them being two blocks directly south on Congress street, which are completely cared for by the Congress street subway; a four-room school several blocks west of State street, which would be cared for by the Neosho street crossing-as far as a grade crossing can do, and by the Congress street subway on all errands to the business section of the city, or any point east of Congress street.
“XXIII. The cost of the proposed construction to the defendant would lay between twenty and twenty-five, thousand dollars.
“XXIV. I find no evidence of any conspiracy upon the part of the city officials, nor any evidence of fraud or corruption, nor evidence that they were actuated by any ulterior motive.
“XXV. In 1897, or in 1898, there were negotiations, between the city and the defendant with reference to opening State and Congress streets. The defendant suggested the desirability of a subway at State street, but the suggestion was accompanied or followed by statement with reference to blocking Neosho street. For some reason nothing came of these negotiations. Shortly prior to the action of the city compelling a subway at Congress street, the negotiations were reopened. The defendant offered to construct a subway at State street or midway between the two, which the defendant contended, and it seems with good reason, was the proper place for a subway if only one were to be constructed. The defendant, however, denied the right of the plaintiff to compel a subway at both of these streets. These negotiations were in progress when the city commenced its action to compel the construction of the Congress street subway.
“XXVI. There is evidence to the effect that it is a ,custom among engineers when running grades to run such grades to the high point in a street; the city engineer of Emporia suggests that in his opinion this may account for the establishment of the grade in 1889 at the top of the defendant’s embankment. This was, frankly, simply the opinion of the engineer, and I am unable to find such to be the fact, because it seems tome quite as probable that that line was established because it may have been conformatory to the grade established in pursuance of the ordinance of 1870; or if such a grade was not established in 1870 the city may have intended to confirm the action of the defendant in laying its tracks where it did; in any event,. I do not find that the grade of 1889 was established solely by reason of a custom among engineers.
“XXVII. The main line of the defendant company from Chicago to Los Angeles, which carries interstate commerce, runs across the intersection at State street and Third avenue.
“CONCLUSION OF FACT.
“From the above facts I conclude that the action of the city council in ordering in the subway under consideration is not without any support in reason, and is, therefore, a valid exercise of legislative power.
“CONCLUSION OF LAW.
“That the writ as prayed for should issue.
“MEMORANDUM.
“The decision of this case, in my opinion, turns entirely upon the question of fact which is found in the conclusion made by the commissioner. Not knowing exactly what weight this conclusion will carry with this court, or any other tribunal, it has seemed fair to me to amplify more than is proper in a finding of fact the situation as it appears to the commissioner after hearing the decisions, and after several personal examinations of the vicinity directly affected by this proposed improvement; hence this memorandum, which is prepared, as far as the facts are concerned, with the same care as the findings and conclusions of fact.
“There is little doubt in my mind of the absolute right of the city to compel the defendant to provide some means of crossing their tracks upon a regularly laid-out street. I think this right exists without an ordinance, and even without a statute. The question is whether a situation exists under all the circumstances which enables the city in the exercise of its undoubted legislative power to compel a subway costing some twenty odd thousand dollars rather than a grade crossing which can be established for a comparatively small sum.
“In this connection it should not be overlooked that the defendant under contract laid its tracks upon a grade fixed by the city engineer. That in 1889 the grade of the cross street, State street, was established, or at least confirmed, at the top of the embankment.
“Upon the faith of these ordinances the defendant has expended considerable sums of money. A change of grade is made by the city after the improvements have been made which compels a subway if the street is opened on the grade as changed.
“It is contended by the city that the defendant company is estopped by its failure to appear in response to. a proper notice and ask the council to allow it damages on account of this change in grade; that having failed to pursue its remedy before the administrative board provided, its right to recourse in the courts is lost. It seems to me that the defendant could not have established damages before the appraisers or before the board, by reason of the fact that at that time the city had not ordered State street Opened and there was no certainty of damages resulting to them by reason of the change. If there was no possibility of remedy before that board, certainly the defendant is not es-topped.
“There is a statute which provides that cities of the second class may order subways or overhead crossings whenever its legislative body thinks it necessary. This is probably a codified expression of a power existing at common law, and should be subject to the same limitations, to wit, that there should be some reason in the circumstances surrounding which will afford a constitutional support for such action.
“This brings us to the merits of the case: Here again the law is as well settled, I think, as a law can be which needs for its application a rule of reason. Circumstances may well be imagined which would make the construction of a subway not only reasonable, but á plain duty which a city council owes to humanity. Such, for example, would be the ordering in of an under or overhead crossing at a principal thoroughfare in a great city. It is likewise not difficult to imagine circumstances under which such action would be plainly confiscatory and unconstitutional. For example, a branch line of the Missouri Pacific railway wanders through the city of Winfield from the south- , east corner of town to the northeast corner of town.
It crosses more than thirty streets of that city, a city of the second class. It operates two trains a day through that city at a speed which admits of stopping within the length of the' engine. If the city council of Winfield, acting from the purest of motives,' should order that company to construct a subway at each of those crossings, it is not conceivable that any court would sustain such action. Each case must be governed by its own circumstances, and to determine where these varying conditions mark the present state of law is difficult. It is conceded by all that it is not the province of the courts or of a commissioner of such courts to substitute their judgment for that of a legislative body charged with that specific duty. The duty of the courts is ended when it has been determined that such reasonable ground may be found for the exercise of power used.
“A careful scrutiny into the circumstances surrounding the situation presented by this record, and of the vicinity affected, has left the commissioner, after much deliberation, very much in doubt as to the correctness of his conclusion of fact. I have been much impressed by the fact, as far as the purpose of traffic is concerned, that there is very little demand for this improvement. Another subway has been constructed within a stone’s .throw. There is but a small part of the town south of the tracks. It is the residence part of a distinct class of people, whose employment generally is found upon the same side of the tracks. Probably the principal communication between the two parts are deliverymen going from the business part of the town and the residents of that part of the town going to the business part of the town. Practically all of these could be served entirely by the Congress street subway. Farmers going to town can use the present subway with equal facility as the one proposed. If the reasons were confined to traffic and its demands I should have little hesitancy in holding that a grade crossing would so nearly completely answer all purposes that an action compelling a subway would be confiscatory.
“Some crossing, however, is necessary, and the cost, of a grade crossing must be likewise considered in determining the reasonableness of a subway, together with the possible future calls upon it. If a grade crossing were established, it would find some use. Persons using it would be subjected to the danger attendant upon grade crossings, diminished somewhat on account, of the low rate of speed used at that point, but still attended with some danger. The tendency of the times, is to do away with grade crossings. And although I am impressed with the idea that the present need for such a crossing is slight, and that if the city had been spending its own money instead of the defendant’s it would have been much slower to act under the circumstances, yet I am unable to say their action was so entirely without reason as to amount to an abuse of power.-, Commissioner.”
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The opinion of the court was delivered by
Brewer, J.:
The district court sustained a demurrer to the petition, and this is the ruling complained of. The petition is as follows:
[Court, and Title.) “The plaintiff, Thomas Hudson, shows to the court and alleges, that at the time of the committing of the wrongs and grievances hereinafter mentioned, the defendant, the Missouri, Kansas & Texas Railway Company, was a railroad corporation duly incorporated and acting under the laws of Kansas, and doing business as a public carrier of persons and goods in and through the city of Parsons, in Labette county, and was the owner of a certain railroad known as the Missouri, Kansas & Texas railroad, together with the track, cars, locomotives, engines, depots, freight-houses and appurtenances thereunto belonging; and that said defendant had at said city of Parsons freight-houses and depots for the purpose of receiving, storing and caring for the goods and freight shipped on and over the said railroad, by and for the patrons of said defendant; that said defendant, on February 7th 1874, had in its employ, at the said city of Parsons, one certain Marcus L. Trotter, as agent, whose duty and business it was, under and by virtue of his said employment, to have the eare, charge and control over the said freight-houses and depots of the said defendant, and to receive and deliver freight and goods consigned to and delivered at said depot, to or from the proper parties and their agents entitled thereto; and that at the time, and while said freight-house and depot were in the possession of, and under the control of the said Trotter, under and by virtue of his said employment as agent of said defendant, and when said freight-houses and depots were open for the free exit and entrance of persons who had business of any kind or nature appertaining thereto, to transact in or about said freight-houses or depots, and while the said plaintiff was in the due and legal prosecution of his business, on said February 7th 1874, at and in the said freight-houses and depots of the said defendant, with proper orders and authority from Yanmeter & Bro., John Conroy, M. M. Neely, and other merchants and persons, as the hired agent of said persons, and for them ashing and demanding of the said defendant, and its agent said Marous L. Trotter, the delivery of, and to him, the said plaintiff, certain goods and freight which had been shipped and carried on and over the said defendant’s railroad for him, the property of said Vanmeter & Bro., Conroy, and Neely, and others in whose employ the plaintiff was, and which goods and freight were consigned to said parties at Parsons, and by said defendant placed in the said freight-houses and depots at said Parsons, the said defendant, by its said agent Marcus L. Trotter, did unlawfully and with force assault, insult, beat, bruise and wound the said plaintiff, by striking him the said plaintiff on his head, face and nech, with a large iron rod or poher, by means of which striking by the defendant the plaintiff was felled to the floor, and the bones of his face and neck fractured and broken, and the defendant by its agent then and there assaulted, struck, kicked, beat, bruised and otherwise misused and maltreated the said plaintiff, by reason of which striking with the iron rod or poker, and the kicking, knocking, beating, bruising and wounding of the plaintiff, by said defendant, and its agent said Marcus L. Trotter, he the said plaintiff became and was sick and disabled for a long space of time, and was obliged to and did expend large sums of money in doctoring and trying to cure himself from the sickness, wounds, and bruises so as aforesaid inflicted and caused by the said defendant, and its said agent, all to his great damage of $8,000— wherefore,” etc.
The question of course raised by the demurrer is, whether the facts stated show a cause of action against the company for the assault and battery actually committed by one of its agents. The mere fact that Trotter was in the employ of the defendant at the time of the assault, does not render it responsible therefor. It must appear that the assault was a part of the employment, or in the course of the employment; otherwise the assailant is himself alone responsible. There is no question as to the rule of law applicable, as will appear from the following-citations:
“A master is ordinarily liable to answer in a civil suit, for the tortious or wrongful acts of his servant, if those acts are done in the course of his employment in his master’s service. The maxim applicable to such cases being, respondeat superior, and that before alluded to, qui faoit per alium, faoit per se. This rule, with some few exceptions which will hereafter be pointed out, is of universal application, whether the act of the servant be one of omission or commission; whether negligent, fraudulent, or deceitful; or, if it be an act of positive malfeasance or misconduct, if it be done in the course of his employment, his master is responsible for it aiviliter to third persons.” — Smith’s Master and Servant, p. 151.
“It has already been said that to make the master liable for the servant’s negligence, this negligence must be in the course, or, as it is sometimes called, ‘scope’ or ‘range’ of the latter’s employment.” — Law of Negligence, "Wharton, §162.
In Story v. Ashton, 4 L. R. Q,. B. 426, Chief Justice Cock-burn laid down the rule as follows: “ The true rule is, that the master is only responsible so long as the servant can be said to be- doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.”
“A master is not responsible for any act or omission of his servants which is not connected with the business in which they serve him, and does not happen in the course of their employment.” — Shearman & Redfield on Negligence, §62.
The only difficulty is in the application of this rule to the facts. Was Trotter acting in the course of his employment in making the assault? Eor 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. But it is not pretended in the petition that this assault was committed in electing or at tempting to eject plaintiff. Neither is it pretended that the assault was made in preventing or attempting to prevent the plaintiff from improperly taking away goods, or from committing any injury to the property of the plaintiff, or from transgressing any of its rules for the regulation of its depot or the transaction of its business. It is merely charged that the assault was committed by Trotter upon plaintiff while he was asking and demanding freight which he was entitled to receive. The gist of the complaint is very fairly and forcibly stated by the learned counsel for plaintiff in error when they' say, “The plaintiff at the time he received the injury complained of was rightfully in defendant’s depot inquiring about and demanding the freight of his principals of and from the said agent of the defendant; and while there, in the prosecution of his duties with the said defendant, and in their depot, he received from the said agent, not the freight of his principals, but the iron poker of the defendant, causing the injury complained of.” In other words, Trotter was employed to deliver freight; plaintiff came and demanded freight; Trotter replies to his demand with an assault. Was such assault in the course of Trotter’s employment? Did it grow out of any services he was engaged in, or was it in the line of his duty?- It seems to us it 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. Reverse. the circumstances, and suppose that plaintiff, as the servant and in the employ of certain merchants, went to the depot of defendant in charge of the agent Trotter, to receive their freight, and while so demanding and receiving freight assaulted Trotter with a poker: would the merchants, his masters, and in whose employ he was, be responsible for that assault? Would it have been in the line or scope of his employment? Clearly not. A party goes into a store to purchase goods, and is therefore rightfully there. He makes an inquiry as to the price of an article of a clerk behind the counter, who in reply takes a weight and knocks him down with it. Can this be said to be an act which the proprietor contemplated, when he employed the clerk? That it was in the line of the clerk’s employment, and that therefore the employer was responsible? But the cases are parallel. The employment in each furnishes the opportunity and the occasion; but in each the act is not one the agent was employed to perform, nor within the scope of his employment. The general allegation, that the company by its agent made the assault, signifies nothing when the actual facts and circumstances of the assault are disclosed. Seefeupon the general questions here involved, Little Miami Rld. Co. v. Wetmore, 19 Ohio St. 110; Baker v. Kinsey, 38 Cal. 631; Malis v. Lord, 39 N. Y. 381; I. P. & C. Rly. Co. v. Anthony, 43 Ind. 183; Railroad Co. v. Donahue, 70 Penn. St. 119.
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
Brewer, J.:
This was an action to quiet title. Plaintiff alleged title and possession, and that defendants claimed title. Defendants in their answer, and by way of cross-bill, alleged title in themselves, that plaintiff claimed title, but that such title was without foundation, and prayed that their title might be quieted. A decree was entered in favor of the defendants. To reverse this decree plaintiff comes to this court.
There are two principal questions before us on the record. Does the answer state a cause of action in favor of the defendants, and against the plaintiff? Do the facts as found, sustain the decree? We do not think the question of the sufficiency of the evidence to support the findings is presented by the record, for the reason that it c]oes not appear that all the evidence is preserved. There is no affirmative statement that the record contains all the evidence. Perhaps that is not always necessary. Following certain testimony offered by the plaintiff, is the statement, “Plaintiff then>rested.” Asimilar statement follows testimony offered by the defendants. Then comes testimony of plaintiff, given in answer to the testimony of defendants in support of their cause of action, followed by a like statement. After this appears testimony of defendants in reply, but without any similar closing statement. Each party’s testimony opens with a statement that he “ offered testimony as follows, to-wit.” Now, whatever might be the legitimate inference, if the defendants’ reply-testimony had been followed by a statement that, “here the defendants rested,” .or any statement clearly showing that at such point the introduction of testimony ceased, without any such statement it is clear that there is nothing upon which to found an assertion that all the testimony is given. Much other testimony might have been given, making clear and plain the very matters which plaintiff’s counsel say are not proved, and still not a statement in the record be untrue in letter or spirit. We pass therefore to the first question.
Does the answer of defendants state a cause of action in their favor and against the plaintiff? And here it may be remarked, that no objection to the sufficiency of the answer was raised in the court below. The parties tried the case as though defendants had stated a good cause of action against plaintiff. In this court, for the first time, is any. question made as to its sufficiency. In such a case the objection is good only when there is a total* failure to allege some matter essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law: Laithe v. McDonald, 7 Kas. 254; Mitchell v. Milhoan, 11 Kas. 617. Turning to the pleadings,-, we find that the answer alleges, in that defense which is in the nature of a cross-bill, or counterclaim, that on April 27th 1858, and for a long time prior thereto, the land in controversy was a part of the public lands and open to settlement and preemption at the land-office at Lecompton; that Thomas Taylor was a citizen of the United States, a resident of Kansas Territory, and entitled to a preemption-right to said lands; that he did upon that day, in strict conformity to the acts of congress thereon, preempt said lands at said land-office, pay the full amount ($210) therefor, and receive a certificate of purchase, entry, and preemption, duly signed and executed by the proper officers, of all of which facts Daniel Wisely, his heirs, grantees, and the plaintiff, had due and legal notice; that said Taylor’s title, by certain conveyances, describing them, is vested in defendants; that after such preemption and purchase, and on June 20th 1859, Daniel Wisely, by some means and in some manner unknown to the said Taylor, or to these defendants, and without the assent, knowledge, consent or notice of his so doing, obtained a pretended certificate of preemption or purchase from said land-office, and afterward, and on August 1st 1860, a patent for said lands; that the issue and delivery of said certificate and patent to said Wisely were in violation of the laws of the United States, in violation of the rights of said Thomas Taylor, and these defendants, and void as against them, and by said certificate and patent no valid legal or equitable title was conveyed to said Wisely, and that said Wisely’s claim had passed to the plaintiff. This was followed by a prayer for a decree quieting title and for possession of the lands. Upon this answer counsel for plaintiff claim, that “ The cross-bill should affirmatively show that Taylor had a right to preempt the land in question, It should appear therein, (1st,) that he was the head of a family, or a single man over the age of twenty-one years, (2d,) a citizen of the United States, or that he had filed his declaration of intention to become a citizen according to law, (3d,) that he was an inhabitant on the tract sought to be entered, '(4th,) upon which in person he had made a settlement and erected a dwelling-house since the first of June 1840, and prior to the time when the land was applied for — the Indian title having been extinguished, and the land surveyed.” Perhaps all these matters are essential to give a right to preempt; and if objection had been raised at the proper time, perhaps the court would have been compelled to sustain it. But it is alleged that he was entitled to a preemption-right to said lands, and that he did preempt them in strict conformity to the requirements of the acts of congress thereon. Now, this as a general allegation includes and covers all those specific statements; and if parties are content to try their case upon such general allegation, they waive all objection to it.
Again, it is claimed by counsel that the allegations of the answer show no fraud, imposition, or trust, and that unless some of these appear, a state court will not take cognizance of the case; that the allegations are, that the # ' ° ? issue of the certificate and patent were in violation of the laws of the United States, and of the rights of Taylor — without showing how or in what respect they were so in violation. To this it may be replied, that the allegations show a valid preemption and purchase by Taylor, that of all this Wisely had full knowledge, that more than a year thereafter in some manner and by some means to,the defendants unknown Wisely obtained a certificate of purchase and patent, and that his so doing was a' violation of the laws of the United States and of the rights of Taylor and his grantees. Does not this disclose a trust ? Does it not show a complete equitable title in Taylor, and that Wisely by some illegal means had acquired the- legal title ? Is not the legal title then held in trust for the equitable ? It is true, the precise steps by which this legal title was acquired, are not shown, and the pleading could have been more full and specific; but still the fact is alleged, that it was acquired after the vesting of 'a coráplete equitable title in Taylor, and by some illegal means. This is now sufficient. It shows the equity in one person, the legal title in another, obtained illegally, and with full knowledge of the equity. In Stark v. Starrs, 6 Wallace, 419, it is said to be the well-settled doctrine, “that where one party has acquired the legal title to property to which another has a better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title.” See also, Garland v. Wynn, 20 How. (U. S.) 6; Hughes v. U. S., 11 How. 568, and 4 Wall. 232; Lindsey v. Hawes, 2 Black, 554. These are all cases of contested titles; and in the last three cases a prior certificate prevailed over a subsequent patent. Counsel contends, that “ It is a presumption of law that the patent to Wisely passed the whole title to the land in controversy. The patent itself is prima facie evidence that all the incipient steps had been regularly taken, authorizing the issuing of the same.” This doubtless is correct; and it is a proposition equally correct when applied to the preemption certificate to Taylor. That is prima facie evidence that all prior steps had been regularly taken, and that Taylor had acquired the full equitable title. The prima facie evidence of either may be overthrown by other testimony; but in the absence of any other testimony the title which is prior in time is the stronger in right. In Carroll v. Safford, 3 How. 441, the court uses this plain language, quoted in the case of Stone v. Young, 5 Kas. 232: “So far as the rights of the purchaser are concerned, they are protected under the patent-certificate as fully as under the patent. Suppose the officers of the government had sold a tract of land, received the purchase-money, and issued a patent-certificate : can it be contended that they could sell it again, and convey a good title ? They could no more do this than they could sell land a second time which had been previously patented.” It seems to us therefore, that as against any objection that can now be raised the answer must be held sufficient to sustain a decree for affirmative relief.
This really disposes of the case, for in respect to the second question, it may be said that no special findings of fact were demanded, and that while the court does find specially certain facts, it prefaces them with a general finding, that “the allegations, all and singular, contained in the answer of the said defendants are true” — so that, whether the facts specially mentioned in the findings are of themselves sufficient’ to support the decree, is practically immaterial, the court having covered all with a general finding.
So far as the matter of improvements is concerned, that cannot be inquired into in this case. No judgment for possession was rendered, but only a decree quieting title. Whenever in an action of ejectment judgment is rendered for possession, the question offimprovements under the occupying-claimant act will properly come up for decision.
The judgment will be affirmed.'
It is understood that the case of the same plaintiff against Alexander Brown is similar, and the same judgment will there be entered.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of- replevin for the possession of a wagon and team. The testimony disclosed these facts: One George W. Reedy occupied a farm of plaintiff in error as a tenant, and had in his possession this team and wagon. He took them to Missouri and there sold them to defendant in error. And the question presented was, as to Reedy’s title, and right to sell. So far as the team is concerned no point is made by counsel for plaintiff in error, further than that the verdict is against the evidence. But as to the wagon, he claims that an instruction given was erroneous. It appeared that the wagon was bought from one Snyder by Reedy; that in payment therefor Reedy gave his note, with Hallowell as security, and that this note had never been paid by Reedy. There was testimony tending to show that this was the entire extent of the transaction as between these three parties. There was also testimony tending to show that Hallowell declined to sign the note as surety until he was protected, and that by agreement between the three the title in the wagon was to pass to Hallowell and remain in him until the note was paid by Reedy. Upon these facts, at the instance of plaintiff, the court gave this instruction:
“If the jury find that Geo. W. Reedy purchased the wagon in question of T. B. Snyder, and that defendant Hallowed was security for said Reedy to said Snyder for the payment of the purchase-money for said wagon, then they will find for plaintiff; and it can make no difference whether said Hallowed was to own said wagon until the same was paid for or not, provided said Reedy retained possession of said wagon.”
It also, at the instance of defendant, gave this instruction:
“If the jury find from the evidence that Reedy bought said wagon, and that Hallowed went on the note as security on condition that Reedy was to deliver the wagon to him to remain Hallowell’s property until Reedy paid said note, then said sale was only conditional, and the wagon remained Hallowell’s property until Reedy paid said note.”
The instruction first quoted plaintiff in error insists was erroneous ; and with this we are inclined to agree. By the mere signing the note as surety, of course Hallowed obtained no interest in or title to the property; and whether the note was paid or not, Reedy would have had full power to sell and pass a good title. But something more is involved here. By agreement the,title was to pass to Hallowed, (at least that is the assumption in the instruction,) and so remain until the price was paid. The consideration for such agreement was ample, and the power to make it unquestioned. The transaction is the same as though Hallowed had owned the property in the first place, and delivered it to Reedy upon an agreement that the title should pass to him when (and only when) he paid the price therefor. It is no more nor less than a conditional sale. The vital question in ad such cases is, the location of the title. Here it was located in Hallowed; and Reedy not having it, could not (Hallowed being guilty of no laches) transfer it to one, even though he were an innocent purchaser. We have had the question of conditional sales recently before us in the case of Sumner v. McFarlan, (15 Kas. 600,) and no further comment thereon is needed. See also Benjamin on Sales, Am. ed., § 320, and notes.
This case having been tried by a jury, and a general verdict rendered, we cannot permit the judgment to stand as to part of the property, and reverse it as to the rest, but must simply remand the case with instructions to grant a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On the 23d of March 1871, the plaintiff in error issued to Joseph A. Cox and Mary Cox a joint life-policy of insurance in the sum of $5,000, loss payable to the survivor, the annual premium on which was $285, payable on or before the 23d day of March in each year. The first and second annual premiums were paid, but the premium which became due March 23d 1873 was not then paid, nor has it since been paid. In the body of the policy is a stipulation in these words:
“And the said company promises and agrees, that if default shall be made in the payment of any premium after the second annual payment it will issue a paid-up policy for a sum equal to the full amount of the ordinary annual premiums so paid at the time of such default, provided written application be made therefor, and this policy and all interest therein, be surrendered within three months from the date of such default.”
In the body of the policy were several conditions, the 2d, 3d, and 5th being in the words following:
“ 2d. If the said premiums shall not be paid at or before 12 o’clock noon, on or before the day above mentioned for the payment thereof, at the office of the company, or to agents when they produce receipts signed by the president or secretary, then and in every such case, the company shall not be liable for the payment of the whole sum insured, but only such parts thereof as is expressly stipulated above, and the remainder shall cease and determine.
“ 3d. In case this policy shall cease - and become null and void, all payments thereon shall bé forfeited^to the company.” “ 5th. If this policy is assigned or held as security, written notice shall be given to the company, and due proof of interest produced with proof of death.”
A complete copy of the policy is attached to the answer. "The assured, on the 21st of April 1873, returned the policy ' to the company for the purpose of obtaining a paid-up policy. The policy has ever since remained with the company, and no paid-up policy has ever been issued. The policy was not assigned to the plaintiff below, nor ever delivered to him. On the 23d of January 1874, the assured made a written assignment, as follows:
“For value received we hereby transfer and assign to David Kelso our claim and account amounting to $570, with the interest thereon, against the Missouri Valley Life Insurance Company. Joseph A. Cox,
“ Oswego, Kansas, January 23d, 1874. Mary Cox.”
The insurance company now claims that neither the petition below, nor the evidence, shows any cause of action in favor of the plaintiff below and against the insurance company. We however think they both do. The fault of the insurance company was, in failing and refusing to issue a paid-up -policy in accordance with the terms of its agreement. And this failure and refusal we think the petition sufficiently alleges, and the evidence sufficiently proves. A correspondence was had between the company and the insured with regard to the issuing of a paid-up policy prior to any default on the part of the insured, and the correspondence was continued until after such default. The company seemed to be entirely willing to issue a paid-up policy until April 23d, 1873, when its secretary wrote and sent the following letter to the insured, to-wit:
Leavenworth, Kansas, April 23d, 1873.
J. A. Cox, Oswego, Kansas.
Dear Sir: We are in receipt of your favor of the 21st instant, with policy 2870, for commutation. We discontinued the issue of joint policies a year ago, and consequently have no blanks of that form. We would be glad to issue you a paid-up policy of increased amount upon the life of either yourself or Mrs. Cox, if such an arrangement could be effected. Please let us hear from you.
Truly yours, J. I. Jones, Secretary.
No offer was ever subsequently made by the company to issue a paid-up policy on the joint lives of Cox and his wife. And no paid-up policy of any kind was ever in fact issued. This letter we think proves that the insured made the proper application for a paid-up policy, and it, together with the fact that the company never issued such paid-up policy, proves that the company were in default. And this default we think furnished a sufficient basis for a cause of action. But it is claimed that an action for damages cannot be maintained, but only an" action for the specific performance of the contract. Now we should think that the insured would have his election as to which kind of action he would bring. He might not want a paid-up policy in an insurance company that had already violated its contract with him. He might not consider a policy in such a company as very valuable. But whatever his opinion might be, we would think that he would have the right to sue the company for damages for the breach of the contract, or to sue the company for a specific performance of the contract, at his option.
But. probably the most difficult question in an action for damages, such as this, is, what should be considered the measure of the damages? In the present case the paid-up policy should have been issued on the joint lives of Cox and wife, and under it the survivor would have been entitled at the death of the other to the sum of $570. But when such death would occur, or when this sum would become due, of course no one can tell. It might be on the same day on which the policy were issued, or it might not be for fifty years thereafter. Evidently then, while both the parties are living, they should not be entitled to recover in an action for a failure to issue the policy more than one of them would be entitled to recover on such policy at the death of the other. In fact, it would not seem that they would be entitled to recover as much. The use of the money is surely worth something. If one of the parties should die before judgment were rendered, then the amount of the judgment should probably be the amount for which the policy should have been issued, together with interest from the date of such death. If how ever both of the parties were living at the date of the judgment, the judgment should probably be for a sum which would purchase such a policy in a good and responsible life-insurance company. But if no evidence should be introduced —and that is the case — to show what such a policy could be purchased for, then we would think that the judgment should be rendered for nominal damages only. It always devolves upon the plaintiff to prove his casé, and to prove his damages; and where he does not do so he can at most recover only nominal damages. In the present case, the insured are both still living, and there was no evidence introduced to show what their damages were. We would therefore think that it would hardly be fair that the plaintiff should now recover, because of said failure to issue said paid-up policy, more than either of the parties could ever under any circumstances recover under or by virtue of the said paid-up policy if the same had been issued. As we have before stated, the amount for which the policy should have been issued was $570. The court below however rendered judgment in favor of the plaintiff and against the defendant for $614 and costs. And this was done without any evidence or finding showing specifically what the damages were. The case was tried by the court without a jury, and no evidence was introduced showing what the damages were, and the only finding of the court is in the following words, to-wit: “It is the finding of the court therefrom, that the plaintiff’s petition is true, and that he is entitled to the judgment therein demanded.” The defendant moved the court for a new trial upon nearly all the statutory grounds, but the court overruled the motion. In this we think the court erred. And the court also erred in rendering the judgment it did.
As the cause of action in this case arose out of contract, and is for damages to be paid in money only, we suppose there can be no queston as to its assignability.
The judgment of the court below will be reversed for the errors above mentioned, and cause remanded for a new trial.
All the J ustices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The defendants in error brought their action against plaintiff in error to recover the value of certain cattle claimed to belong to them, and to have been converted by him to his own use. That the cattle at one time belonged to them, and that Shepard did get possession of and convert them, are undisputed facts. It appears that they made an arrangement with one Joseph "Wheat to take the cattle and winter them. While so in possession, Wheat transferred them to Shepard. Shepard claims that Wheat was a partner of theirs, with perfect legal right therefore to dispose of the cattle; or at the least, that they so acted and held him out to the world that he and others were justified in regarding him as a partner, and treating with him as such. Pratt and Painter claim that Wheat was simply employed to take care of and feed the cattle through the winter, was not a partner, and had‘no right of disposal. Three classes of questions are presented by counsel for plaintiff in. error.
I. It is insisted that the court erred in ruling out portions of two depositions. In the deposition of B. A. Wheat the witness testified that he was present at a conversation between the plaintiffs and Joseph Wheat, and then the deposition reads: “From the conversation I learned that the said Pratt and Painter and Joseph Wheat had entered into a partnership,” etc. This was stricken out, and properly so. It does not purport to be his recollection of the conversation, but his conclusions from it. The use of the word, “learned,” might not of itself be decisive; but the further language shows that-the witness is not trying to give the language of the various parties to that conversation, or the substance of it, but is simply giving the results, as he understood them. This is manifestly wrong. City of Atchison v. King, 9 Kas. 550; DaLee v. Blackburn, 11 Kas. 190. Again, as to the deposition of John F. Gregory these are the facts: The witness had testified substantially that in April 1872, Joseph Wheat brought him an order signed Pratt & Painter, to the best of his recollection, which was written by and in the handwriting of D. A. Painter, one of defendants in error; and then follows the part objected to and ruled out, as follows:
“ I have made strict and diligent search for said order, but cannot find the same; and as far as I can ascertain, it is lost. Said order was directed to me as agent for the firm of Gregory,. Strader & Co., who were at that time engaged in the livestock commission business, and said order was in substance as follows:” [Here follows witness’ description of the contents of the order, also stricken out.]
Here too we see no error. The witness has substituted his own opinion of the character of the search for those facts upon which alone the court can determine whether a sufficient search has been made. No one can tell from this statement where the witness searched; when, or how long he searched; where and when he last saw the order; or any other facts concerning its loss. No sufficient foundation was laid for secondary evidence of its contents. Johnson v. Mathews, 5 Kas. 118.
II. A second class of objections runs to the instructions. It is said that the court erred in refusing instructions Nos. 5, 6 and 7 asked by defendant, and in giving instruction No. 1 asked by plaintiffs. With reference to the instructions refused, it may be said, that inasmuch as the record does not purport to contain all the instructions this court cannot affirm error, because they may have been refused because already once given. DaLee v. Blackburn, 11 Kas. 190; Ferguson v. Graves, 12 Kas. 39. Again, as a matter of fact, said fifth and seventh instructions had already been given in substance, though not in the same language, and the court was under no duty to repeat them, or to clothe the same ideas in different language and then present them. By so doing, it is sometimes true, that the principles of law or their application to the case in hearing are made clearer to the jury; but as often, if not ■oftener, such practice tends to confuse rather than instruct’. At any rate, it is well settled that the court commits no error in refusing to present a principle of law to the jury a second time, or in different language. Gillett v. Corum, 7 Kas. 156; Kansas Ins. Co. v. Berry, 8 Kas. 159; Abeles v. Cohen, 8 Kas. 180. As to said 6th instruction, it is not true that an equal ■division of the profits always and under all circumstances ■constitute a partnership. While such may be one of the tests of a partnership, yet it is only one of several tests, and is sometimes overborne by other and controlling facts. In the case at bar, such an instruction given, without any qualifications or limitations, would have been apt to mislead. We think therefore that if this refusal was fully and properly before us we could not hold that there was error therein.
In reference to the instruction given at the instance of the plaintiffs: It assumes nothing as to the facts proved or disproved, but simply charges the jury in substance, that if from .all the evidence they believe that the defendants in error were, in the fall of 1871, the owners of and in the possession of certain Texas cattle, and then made an arrangement with Joseph Wheat whereby he was to winter them, and that they should pay him for the fodder consumed and necessary help employed, and that upon the sale of the same they were to pay Wheat one-third of the increase in value over and above the price at which they were valued at the time of delivery to him, less the expenses of wintering, as and for the purpose only of compensating Wheat for taking charge and care of and wintering said cattle, and that said defendants in error did not hold out said Wheat-to the world as a partner, nor by their negligence had permitted or allowed him to be so held out, and thereby plaintiff in error was misled to his prejudice, then and in said case Wheat would not be a partner in such cattle. That this states the law as it is now generally recognized, seems hardly to admit of doubt. See among others the following authorities: Loomis v. Marshall, 12 Conn. 69; Denny v. Cabot, 6 Met. (Mass.) 82; Burchle v. Eckart, 1 Denio, 337; same case, 3 N. Y. 132; Lewis v. Gruder, 51 N. Y. 231; Parker v. Fergus, 43 Ill. 439; Eastman v. Clark, 53 N. H. 276.
III. The remaining objection is to the verdict. It is insisted that it is contrary to the evidence, and that if it can be sustained for the plaintiffs at all, that the damages are excessive. In reference to the first proposition, it is unnecessary to say more than that there is abundant testimony to support the verdict, and that though the preponderance may seem to be on the defendant’s side, yet, after the jury and the district court have both passed upon the question' of fact, it is, by well-settled rules, beyond the province of this court to interfere.
The other claim, that the damages are excessive, presents a question of some difficulty. The verdict was for $3,998.81. No witness values the cattle at over $35 per head, and no testimony shows over 99 cattle in defendant’s possession, except perhaps a general statement of Joseph Wheat that Shepard “got something over 100 head.” It would seem exceedingly probable that there were only 98 head taken by Shepard, and that $35 per head was in excess of their actual value. But still the jury were the triers of these questions, and they were at liberty to take the highest valuation and the largest number if such was their judgment upon the testimony. But the highest value and the largest number would only make, a verdict of $3,500. The difference, say counsel for defendants in error, is the interest. To this counsel for plaintiff in error replies, that no interest is recoverable because none is claimed, and cites as authority, Gen. Stat. 647, (code, § 87;) Graves v. Dunn, 5 Kas. 254, 261. Unquestionably the excess over $3,500 was intended for interest, probably more than that. Was it recoverable? The section cited is the one describing what the petition must contain; and the third essential is, “a demand of the relief to which the party supposes himself entitled.” Then follows this provision: “If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed, the time for which interest is to be computed shall be also stated.” And in the case cited, this court, where no interest was claimed in the petition, and the judgment included interest, modified the judgment by striking out the interest. That was an action upon a note, and establishes the proposition that where the demand is liquidated no interest is recoverable unless claimed in the petition. “ But here,” say counsel for defendants in error, “ the demand is unliquidated; the amount is to be ascertained by the verdict. It is claimed as damages, while in the other class of cases it is claimed as debt. It is sufficient in a case like this, and where there is but a single cause of action, to allege generally a sum as damages without specifying the separate items or elements which enter in to make up the sum total of the damages, and then the only limitation is that the verdict shall not exceed the amount claimed, and that the jury in arriving at such verdict shall follow the established rules for determining the amount of damages. In actions of trover the measure of damages is the value of the property at the time of conversion, with interest to the date of the verdict. And the jury, in adding interest to the value' only pursued the true measure of damages.” There is doubtless truth in these claims, and we think these propositions upon the general subject may be laid down as correct:
1st. Wherever a demand is liquidated, no interest is recoverable unless claimed, and unless the time from which -it is to be computed is stated in the petition.
2d. It is unnecessary in most actions where the demand is unliquidated, and sounds wholly in damages, and where there is but a single cause of action, to state specifically and in amounts the different elements or items which go to make up the sum total of the damages. It is enough to claim so much in gross, as damages for the wrongs done.
3d. In such a case, the only limitations upon the size of the verdict are, that it shall not exceed the gross amount claimed, and that the jury in arriving at it shall have had regard to the true measure of damages.
4th. In actions in the nature of trover for the conversion of personal property, the measure of damages is ordinarily the value of the property at the time of the conversion, with interest to the date of the verdict.
But these propositions, though decisive in most cases, do not meet the entire difficulty in this. The petition does not allege generally that the plaintiffs have been damaged so much by the wrongs of the defendant, but enters into some specifications. It alleges that the plaintiffs were the owners of 225 head of cattle; that they were and are of the value of $7,875; that they cannot state the precise value of each animal, but that they were and are of the average value of $35 per head; that the defendant took possession of said cattle and converted them to his own use, to their damage $7,875, for which sum they claim judgment. This is all that bears upon the question. Here the plaintiffs have specified the items of damage. Are they not limited to their specification? Suppose for instance the testimony had shown a conversion by defendant of the 225 head and average value equal to the amount stated, $35, could the jury, under the petition, have added interest? None is claimed. The damages stated, $7,875, are the product of the value per head, $35, multiplied by the number converted, 225. By what right could the jury add more? So, when the testimony shows that only 100 head have been converted, and that they were of the value of $35 per head, are not the jury limited to the value stated per head, multiplied by the number proved to have been converted? If the plaintiffs had made the allegations less definite, or had added. a claim for interest, no question could be raised upon the verdict. If the allegation hall been, for instance, that defendant had converted a large number of cattle, without specifying any number, to the plaintiffs’ damage, etc.; or, if it had alleged the conversion of 225 head, to the damage, etc., without specifying any value per head; or, if it had alleged both number and average value, and the testimony had shown the value of the 100 above the alleged average value'; or, if it had alleged both number and value, and claimed interest, then we think the verdict must have been upheld. But where the number and average value are both stated, and no testimony shows the value of those proved to have been taken above this average value, and no claim for interest is made, then we think a verdict in excess of the value multiplied by the number taken, cannot be sustained. In many cases it might be proper to permit an amendment by inserting a claim for interest; but an examination of the testimony does not lead us to consider this a case where the interests of justice require an amendment. If the plaintiffs below elect to remit such portion of the judgment as is plainly for interest, it may stand; otherwise a new trial must be ordered.
The case will therefore be remanded, with instructions that if within sixty days after filing of the mandate in the court below the plaintiffs remit $498, thus reducing the judgment to $3,500, the judgment will be affirmed, otherwise it will be reversed and a new trial ordered. The costs of this court will be divided.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
From an inspection of the record, we have been unable to find any error in this case. The entire brief of the plaintiff in error reads as follows: “The plaintiff in this case believes the law of this case to be settled in the following cases: 10 Kas. 81; 10 Kas. 639.” The plaintiff in error is correct. The two cases referred to do settle the principal questions that might be raised in this case, and they settle such questions against the plaintiff in error. As there is no error-apparent on the record, 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
Brewer, J.:
Defendant was charged with selling liquor without a license in the city of Oswego, in violation of an ordinance of said city. He was convicted on a trial before the police judge of the city. On appeal to the district court, the case was submitted upon an agreed statement of facts to the court, who found the defendant not guilty. The city seeks by petition in error to reverse this acquittal, and secure a retrial of the charge. This cannot be done. City of Olathe v. Adams, 15 Kas. 391.
As to the question whether a druggist is allowed to sell liquor without having a license, see the case of City of Salina v. Seitz, ante, 143.
The petition in error will be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Milton, J. :
This is an action in replevin brought by M. P. Higgins to recover the possession of a dwelling-house in the city of El Dorado, Kan., the plaintiff alleging ownership of the house and of the lot from which the house was removed by the defendants Margaret E. Rees and her husband, William Rees. George W. Smith, one of the defendants below, acted only as an employee of the other defendants in the-work of removing the house from the lot to the nearest street. Margaret E.Rees claimed the right to the possession of the house and the ownership of the lot under a tax deed issued on the 6th day of September, 1897,-based on a tax certificate assigned to her on the 2d of that month by the clerk of Butler county. Immediately after procuring the tax deed, William Rees, as the agent for his wife, took actual possession of the property so conveyed, the house being vacant and untenantable, and not having been occupied by Higgins or by any one under him for about eighteen months prior to the date of the deed. It is one of the controverted questions in this court whether demand for the possession of the house was made by the plaintiff after or before it was actually removed from the lot. While the findings of the court are not entirely clear on this point, we think they show that demand was made after such removal. -The defendants Rees and Rees actually removed the house to another lot and placed it on a permanent foundation, and thereafter occupied it as a family residence. Judgment was rendered in the alternative in favor of the plaintiff below, the court finding the value of the house to be $150. The court made findings of fact, and the evidence is not presented in the record. On the trial the plaintiff’s title prior to the issuing of the tax deed was not questioned, but the validity of the tax deed was disputed, and oral evidence was introduced for the purpose of proving its invalidity. The tax deed stated a consideration greater by forty-eight cents than the amount recited as having been paid to the county treasurer for the assignment of the tax certificate, and the court found that the difference was made up of the costs of advertising the land in the redemption notice and the fee for assignment of the tax certificate. For this reason the court held the tax deed to be invalid, and its judgment in favor of the plaintiff was based on the finding of the foregoing facts.
We think the court erred in its judgment. It appears from the findings that the tax deed was on its face valid; hence it purported to vest in the grantee an absolute estate in fee simple in the land which it conveyed. (Gen. Stat. 1897, ch. 158, § 197 ; Gen. Stat. 1899, § 7334.) As such grantee Margaret E. Rees became entitled to the immediate possession of the property, which at the date of the execution of the deed was vacant and unoccupied. She entered into possession of the premises, and at the date of the commencement of this action was in possession thereof, holding the same adversely to the plaintiff, in good faith and under claim and color of title. It was not proper, therefore, to make the replevin action the means of litigating and determining the title to the real property as between the conflicting claimants. (Cobbey, Repl. § 374; Halleck v. Mixer, 16 Cal. 579; Caldwell v. Custard, 7 Kan. 303, 307; Rathbone v. Boyd, 30 id. 485, 2 Pac. 664.
The case of Green v. Railroad Co., 8 Kan. App. 611, 56 Pac. 136, is not in conflict with the conclusion here reached. The judgment of the district court will be reversed, and the cause remanded with instructions to enter judgment in favor of the plaintiffs in error for costs.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Kevin C. Harris-, of Shawnee Mission, an attorney admitted to the practice of law in Kansas in 1985.
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared in person and with his attorney. The hearing panel concluded that the respondent violated Kansas Rules of Professional Conduct (KRPC) 3.1 (2007 Kan. Ct. R. Annot. 500) (meritorious claims and contentions); KRPC 3.2 (2007 Kan. Ct. R. Annot. 503) (expediting litigation); and KRPC 3.4(d) (2007 Kan. Ct. R. Annot. 514) (fairness to opposing party and counsel). The hearing panel unanimously recommended that the respondent be suspended from the practice of law for a period of 2 years. The respondent filed exceptions to the final hearing report pursuant to Supreme Court Rule 212 (2007 Kan. Ct. R. Annot. 317).
The panel’s final hearing report provides, in part, as follows:
“FINDINGS OF FACT
“2. Raymond Harris had five children: three sons, the Respondent, Dennis Harris, and Brian Harris, and two daughters, Patricia Blenis and Maty Sobray.
“3. During the lifetime of Raymond Harris, disputes arose between the siblings as to where Raymond Harris should live and how he should be cared for. At some point, competing guardianship and conservatorship cases were filed at approximately the same time, one in Johnson County, Kansas, and one back East. The Court back East concluded that Kansas was the proper venue and dismissed the pending litigation.
“4. In die Kansas guardianship case, the Respondent was appointed to serve as the guardian and [brother] Dennis Harris was appointed to serve as the conservator.
“5. Raymond Harris died on August 31, 2003.
“6. On September 29, 2003, Ms. Blenis wrote to Judge Sheppard of the Johnson County District Court [successor judge in the guardianship/conservator action], In her letter, she stated:
‘Please know that in the matter of guardianship and conservatorship of Raymond J. Harris, Case Number: 02GC28 there has been absolutely no accounting filed as ordered by Judge Bruner [original judge] and as stipulated in the Kansas statutes. I am concerned about this because Raymond J. Harris was my father. Sadly, he passed away on August 31, 2003.
‘Judge Bruner’s ruling on June 14, 2002 states, “The Court is going to appoint him (Dennis Harris) conservator and require a full inventory within thirty days that is in accordance with K.S.A. 59-1021, and will require for his service the appointment and qualification of resident agent and a surety bond in the amount of $350,000.” I have called the clerk’s office several times only to be told this inventory has never been filed. I am also aware that an annual accounting was due in July 2003. Again, I have made several calls to the clerk’s office only to be told that it has not been filed. I was told a second reminder was mailed to the conservator on August 26, 2003 asking for the conservator’s annual report. As of today, this has not been filed.
‘You may recall that I was in your courtroom on January 23, 2003 with a motion to clarify the order for guardianship. I simply visited my father after he was admitted to Shawnee Gardens Nursing Center and because the guardian, Kevin Harris, instructed the nursing home not to let me visit my dad, I was escorted out of die center. I must tell you, the ruling of June 14, 2002 when Kevin Harris was named guardian and Dennis Harris was named conservator greatly disappointed me. My sister and I asked for a third party in both capacities. Even though this decision disappointed me and I believe devastated my father, I had to comply with the ruling. The accounting should be filed as ordered by Judge Bruner and as stipulated by the laws of Kansas. My feeling is that the Court named Dennis Harris as the conservator so now the Court should hold him accountable to the responsibilities he asked for and willingly accepted.
T would also like you to know that I recall while I was in your courtroom on January 23, 2003,1 heard you tell the guardian, Kevin Harris, to make his sisters aware of their father’s condition. You should know that my sister and I were not notified when our father received ten or more stitches in his head due to a fall, when he was moved to the Alzheimer’s unit at Shawnee Gardens, and when hospice care was required. My sister received a letter from the guardian informing her of the death of Ray Harris. Sadly, the letter arrived the same day a Mass in his honor was held. My father deserved to have all five of his children there as well as my son, his grandson. I simply do not understand how all of this could have happened. Judge Bruner said on June 14, 2002, “Kevin Harris has now become an independent legal guardian, but with responsibilities to his sisters to assure that the loving relationship between his father and his sisters and Mr. Raymond Harris’s daughters will be protected by the Court as you are well aware.” He went on to say, “You should provide for their ability to see Ray. It is your obligation.” Nothing will bring back my dad or the time I would have like to have spent with him, to ease his pain or comfort him. So, for me, the worst has happened, my dad died a lonely, agonizing death without his children with him.
T believe both the conservator and the guardian disregarded Judge Bruner’s ruling, K.S.A. 59-1021 and 59-3018 and your instructions on January 23,2003. I am asking for your help in rectifying the situation in any way possible. I appreciate your time and consideration.
‘As a personal favor, I would appreciate it if my address could be redacted should this letter need to be part of the public file.’
“7. On October 4, 2004, the Respondent filed suit against Ms. Blenis and her attorney, Jean Ann Uvodich. The Respondent alleged that Ms. Blenis defamed the Respondent. The Respondent also alleged that Ms. Blenis and Ms. Uvodich engaged in malicious prosecution. Later, the Respondent filed an Amended Petition and alleged that Ms. Uvodich also defamed the Respondent.
“8. Ms. Uvodich contacted her professional negligence carrier and reported the suit filed by the Respondent. Thereafter, Robert J. Luder and Kim J. Poirier entered their appearance in behalf of Ms. Uvodich.
“9. Ms. Uvodich answered the Petition and the Amended Petition and denied the allegations. Additionally, Ms. Uvodich asserted that the Respondent’s allegations are frivolous, represent an abuse of process, and should be dismissed. The Respondent attempted to achieve service on Ms. Blenis by serving Ms. Uvodich. However, Ms. Uvodich’s scope of representation did not extend to all representation of Ms. Blenis.
“10. On December 20,2004, counsel for Ms. Uvodich served the Respondent with her opening interrogatories and her first request for production of documents. The Respondent failed to timely answer the discovery requests.
“11. On December 22,2004, counsel for Ms. Uvodich served the Respondent with a request for a statement of monetary damages. On January 18, 2005, the Respondent provided a statement of monetary damages, requesting $112,357.67 in damages. The respondent’s written statement failed to describe how the damages were calculated. At the hearing on this matter, the Respondent testified as follows regarding that figure:
‘Q. [By a member of the panel] And the first — the first sentence talks about your monetary damages being $112,357.67?
‘A. [By the Respondent] Yes.
‘Q. Did you ever itemize that? I know on Page 36 a request was made for that. Did you ever- — did you ever provide an itemization of that?
‘A. I responded with that amount. And I think that’s the only response I gave. They never brought up the amount of monetary damages. I did have that itemized in the probate case. And for — for whatever reason, Mr. Martin was denied my — any—I didn’t get any attorney’s fees from all the work I did in the probate case. I didn’t get the filing fee back. I didn’t get the filing fee back I had on the case, on the rent-in-possession case. And I didn’t get paid for that because Ms. Uvodich and her clients didn’t want to pay for it.
1 had to pay to bury my — my parents, because the two daughters would not agree to pay the funeral expenses for my mother and father. My brother Brian, my brother Dennis, and I had to pay for the funeral.
‘Q. Is that what you just listed, that’s the basis for the $112,000?
‘A. The $112,000 was based on my time as an attorney, going through there, and also my time as a guardian where I spent — I took care of my father. I saw him four to five times a week when he was in the nursing home. I called daily when he lived at 4914 Neosho which I think Mr. Merker said six to ten blocks, it’s actually about two blocks away. I live at 5201 Howe.
‘And I would see him every day. I would feed him. Money came out of my pocket to go ahead and buy him food and that sort of thing. I had the — all that worked up, I got turned down, and I threw it away.
‘Q. [By a member of the panel] Just to clarify what you were just talking about. Are you saying that in your damages that you were requesting in this lawsuit of the $112,000, that includes your time for taking care of your dad at your attorney rate?
‘A. No. No. No. No. No. That was at a- — I forget the hourly rate that the— the courts use in Johnson Counfy, but I think it was like $15, $20 an hour.
‘Q. Okay. So you were saying that that is — you were requesting compensation for the time at a guardian rate?
‘A. I was — well, there were two different rates. Attorney — attorney rate of $150 an hour and then the guardian rate at $15 or $20, and I really forget which.
‘Q. Okay. But what I’m — what I’m trying to figure out is included in the damages you’re asking then, as I understand your testimony, you’re saying that you calculated the time involved and requested compensation for that? Time involved in caring for your father.
‘A. That’s correct.
‘Q. Okay. Thank you.
‘A. And I was denied that compensation, I believe through the efforts of Ms. Uvodich’s clients. I never got a dime. I never got anything.
‘Q. [By a member of the panel] And if I understand your testimony, Mr. Harris, that’s part of the damages that you believe that — or that — for which you sued Ms. Uvodich. Right?
‘A. Yes.’
“12. On December 23, 2004, the Respondent delivered a notice of deposition to a mail box rented in behalf of Ms. Blenis. The notice of deposition required that Ms. Blenis appear for a deposition on January 6, 2005. Ms. Blenis did not appear at the deposition on January 6, 2005. Later, the Respondent sought sanctions against Ms. Blenis for fading to appear for her deposition. The Court overruled tbe Respondent’s motion.
“13. Counsel for Ms. Uvodich sent the Respondent two letters requesting that he comply with the discovery requests. The Respondent failed to respond to the two letters and failed to provide responses to the requests for discovery.
“14. Counsel for Ms. Uvodich was forced to file a motion to compel discovery. At approximately the same time, counsel for Ms. Blenis filed a motion for judgment on the pleadings.
“15. At the time die motion to compel was scheduled to be heard, on March 9, 2005, the Respondent filed a motion for a protective order. The Court took up both motions that day. The Court granted the motion to compel and denied the Respondent’s motion for a protective order. The Court ordered the Respondent to respond to the requests for discovery by March 31, 2005.
“16. On March 31, 2005, the Respondent filed a motion for an extension of time to answer the requests for discovery. It is unclear from the record whether the Respondent’s motion was heard or ruled on by the Court. However, the Respondent never provided responses to the requests for discovery.
“17. Counsel for Ms. Uvodich filed a motion to dismiss [and] requested sanctions. The Court took up a number of motions on April 20, 2005. At the hearing, the Court denied the Respondent’s motion for default judgment and granted, in part, Ms. Uvodich’s request for sanctions. The Court scheduled an additional hearing for April 21, 2005, at 1:30 p.m.
“18. On tihe morning of April 21, 2005, the Respondent called the Court and informed the Court that he planned to dismiss the action. The Court advised the Respondent to contact opposing counsel and inform them to avoid having them show up for the scheduled hearing. The Respondent left messages for the attorneys representing Ms. Blenis and Ms. Uvodich, but they did not receive the messages. When counsel for Ms. Blenis and counsel for Ms. Uvodich appeared in Court for the hearing, the Court informed Ms. Blenis and Ms. Uvodich that the Respondent indicated that he was going to dismiss the case. Ms. Blenis and Ms. Uvodich objected to proceeding with an oral motion to dismiss. The Court ordered the Respondent to file a written motion to dismiss within ten days. The Respondent failed to file a written motion to dismiss within ten days.
“19. The Court held a scheduling conference. The Respondent failed to appear at the scheduling conference. At that time, because the Respondent had failed to comply with the Court’s order, the Court dismissed the case. The Court scheduled a subsequent hearing to take up the matter of sanctions.
“20. Thereafter, counsel for Ms. Blenis and counsel for Ms. Uvodich filed separate additional motions for sanctions.
“21. The Court later concluded that the Respondent’s action was frivolous in nature, pursuant to K.S.A. 60-211 and awarded sanctions against the Respondent in the amount of $2,904.00 for Ms. Blenis and in the amount of $6,312.17 for Ms. Uvodich. The sanctions were paid by the Respondent through a garnishment proceeding on monies held in behalf of the Respondent by the administrator of Raymond Harris’ estate, Barry Martin.”
EXCEPTIONS AS TO FINDINGS OF FACT
The respondent filed exceptions to the panel’s findings of fact contained in paragraphs 2, 3, 6, 8, 9,10, 11, 12, 13,14,16,18, 19, 20, and 21. The arguments asserted in the brief take issue with the panel’s conclusions of law, its rationale concerning the appropriate discipline to be imposed ,and its recommended discipline. Accordingly, the respondent’s exceptions to the findings of fact are deemed abandoned. In re Bishop, 285 Kan. 1097, 1106, 179 P.3d 1096 (2008) (exceptions filed but not argued in the respondent’s brief deemed abandoned). We turn now to the panel’s conclusions of law.
CONCLUSIONS OF LAW
The panel concluded as follows:
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 3.1, KRPC 3.2, and KRPC 3.4, as detailed below.
“2. ‘A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous.’ KRPC 3.1. The District Court concluded that the Respondent’s claims were frivolous and awarded sanctions to the defendants. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.1.
“3. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. In this case, the Respondent failed to expedite [the case] he filed against his sister and her attorney. The Respondent failed to comply with discovery requests, the Respondent failed to timely appear in Court for scheduling conference, and the Respondent failed to meet a deadline set by the Court. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“4. Lawyers are required to be fair to the opposing party and counsel. See KRPC 3.4(d). Specifically,
‘[a] lawyer shall not ... in pretrial procedure, ... fail to make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’
In this case, the Respondent failed to provide responses to discovery as requested by counsel for Ms. Uvodich and as subsequently ordered by the District Court. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 3.4(d).”
DISCUSSION AS TO CONCLUSIONS OF LAW
Respondent’s counsel requested and received two extensions of time to file exceptions, alleging he, personally, had medical issues. On the day before the exceptions were due, on the second and final extension, the respondent’s counsel filed a notice stating that the respondent, himself, would be filing the exceptions. The respondent timely filed the exceptions; however, the only portion of the final hearing report that he filed exceptions to concerned the panel’s findings of fact. He did not take exception to any of the panel’s conclusions of law, stating, “As to the conclusions of law and recommendations, respondent requests the right to have counsel respond upon his recovery.”
Supreme Court Rule 212(c) specifically states that “[a]ny part of the hearing report not specifically excepted to shall be deemed admitted.” (2007 Kan. Ct. R. Annot. 317). Although the rule does not specifically address whether exceptions can be reserved to be asserted at a later date, the point is moot here, because the respondent’s attorney never filed any supplement to the exceptions filed by his client.
Pursuant to Supreme Court Rule 212(c), failure to file exceptions constitutes admission. Thus, the violations found by the panel are deemed to be admitted.
We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. Further, we adopt the panel’s findings of fact and conclusions of law.
We turn now to the panel’s recommended discipline and its rationale relative thereto.
RECOMMENDED DISCIPLINE
The panel stated:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal system to refrain from abusing process.
“Mental State. The Respondent knowingly and intentionally violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent- caused actual harm to Ms. Blenis and Ms. Uvodich.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions. Following a hearing before a Hearing Panel of the Kansas Board for Discipline of Attorneys, on April 26, 1994, the Respondent was informally admonished by the Disciplinary Administrator for failing to diligently represent his client, for fading to appear in court in behalf of his client, and for failing to forward the fine and costs to the Court in behalf of his client.
“On March 14, 1997, the Kansas Supreme Court placed the Respondent on supervised probation for two years for having engaged in misconduct. Specifically, the Respondent violated MRPC 1.15, MRPC 1.4, MRPC 1.16(a)(3), MRPC 1.16(d), and MRPC 1.5(a). In re Harris, 261 Kan. 1063 (1997).
“On January 28, 2002, the Disciplinary Administrator informally admonished the Respondent for fading to provide diligent representation in an appellate case.
“Dishonest or Selfish Motive. The Respondent’s motivation to file suit against his sister and her attorney was motivated exclusively by the Respondent’s selfishness.
“A Pattern of Misconduct. The Respondent repeatedly failed to respond to discovery requests. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 3.1, KRPC 3.2, and KRPC 3.4(d). As such, the Respondent committed multiple offenses.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent refused to acknowledge the wrongful nature of his conduct.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1985. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of approximately 20 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommen elation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Imposition of Other Penalties or Sanctions. The Respondent was ordered to pay more than $9,000.00 in sanctions. The order for sanctions was satisfied by garnishing monies held in behalf of the Respondent by the administrator of Raymond Harris’ estate, Barry Martin.
“Remoteness of Prior Offenses. The discipline imposed in 1994 and 1997 is remote in time and in character to the misconduct in this case. The discipline imposed in 2002 is remote in character to the misconduct in this case.
In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.’ Standard 6.22.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2.
“The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law in the State of Kansas. Counsel for the Respondent recommended that the Respondent be informally admonished by the Disciplinary Administrator or that the Respondent be censured by the Kansas Supreme Court and that the censure be published in the Kansas Reports.
“The Hearing Panel has carefully considered the Respondent’s misconduct in this case. The Hearing Panel is troubled by the Respondent’s misconduct in this case. The Respondent’s suit against his sister and her attorney was founded in defamation and abuse of process [malicious prosecution]. However, the damages alleged by the Respondent had nothing to do with the allegations of the petition. The Respondent sought more than $112,000 from his sister and his sister’s attorney for unreimbursed expenses attendant to his father’s needs and for the Respondent’s time spent visiting his father. The Hearing Panel finds that the Respondent engaged in excessively aggressive conduct that assails the standards to which lawyers are to conduct themselves, in that Respondent would attempt to have his sister and her attorney pay the Respondent for time he spent visiting his father and other alleged damages that were not even remotely related to the allegations in the Petition or the Amended Petition.
“Based upon the findings of fact, conclusions of law, the aggravating and mitigation factors, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of two years from the practice of law in the State of Kansas.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
ANALYSIS
In order to determine the appropriate discipline to be imposed hereto, some additional discussion of the evidence presented at the hearing before the panel is necessary.
One of the witnesses, Richard Merker, testified that he had represented respondent when the guardianship was being contested. He described the relationship of respondent and his brother, Dennis, to their sisters, Patricia Rlenis and Mary Sobray was that of long-standing mutual hatred, with their father, Raymond, being caught in the middle. Respondent’s anger toward his two sisters and their attorney, Jean Uvodich, was a large part of respondent’s testimony. He was angry about the Judge Sheppard letter, requests made to SRS to investigate the father’s care by respondent at the father’s home and, later, in the nursing home, and rumors he believed had been started by the sisters and their attorney that he had stolen items from the father. Respondent testified:
“Q. When you filed this — the lawsuit against the — the defamation action, if you will, against Ms. Uvodich and Ms. Blenis, what was your reasoning for doing that?
“A. The reason for doing that was based upon this letter. Also the fact that throughout the neighborhood I was hearing matters that I had taken money from the — the estate. I had been hearing that I was not taking care of my father properly, that I was not carrying out my duties as a guardian.
“Q. Was it your understanding that these statements were coming from Ms. Sobray, Ms. Blenis, Ms. Uvodich?
“A. All of them.
“Q. All of them?
“A. I was tired of being called a thief. I never stole anything from my father. I never stole anything from my father’s estate. And I get' — kept being called a thief by these people. And I was tired of it. And I wanted to bring it to an end.”
Respondent further testified:
“Q. So you were very angry by the time you filed this lawsuit, weren’t you?
“A. I five in that neighborhood. I don’t want people around there saying that I stole from my father.
“Q. My question was you were very angry. Correct?
“A. I was very angry because I was accused of stealing from my father. I was accused of mistreating my father. And those accusations were absolutely not true.
“Q. And you’re still angry today?
“A. I am.“
Respondent’s position at the panel hearing was that he did primarily criminal defense work in his practice and, in essence, was unfamiliar with what must be pled in defamation actions and how to comply with civil discovery procedures. He reasons that his noncompliance is, therefore, excusable. Further, his sisters and their attorney had pushed him beyond endurance with the above-referenced false accusations and he was just reacting to that.
In his brief, respondent acknowledged it was a mistake for him to represent himself in the defamation/malicious prosecution action and “he should have retained an attorney to look at the case in an objective manner, free of the emotional aspect involved in this type of litigation.” Before the panel and in his brief, respondent argues that in his own mind he was justified in filing the action.
Respondent specifically takes issue with the panel’s statement that Blenis and Uvodich were harmed by the frivolous lawsuit. He portrays himself as the victim as the sanctions award was paid to them (from a garnishment against his inheritance). He views them as the winner and himself as the loser.
Respondent also challenges the panel’s statement that he had refused to acknowledge the wrongful nature of his conduct.
As to the harm to Blenis and Uvodich and his refusal to acknowledge his conduct was wrongful, respondent states in his brief:
“The uncontroverted evidence presented at the Hearing and through the exhibits received into evidence does not establish that any harm was inflicted upon Ms. Blenis or Ms. Uvodich. It appears that just the opposite has been established. While it is true that the Defendants had to hire attorneys to represent them in tire litigation, their attorneys were paid for their representation by Respondent.
“Apparently, with the exception of Defendant Uvodich testifying at Respondent’s Hearing, neither of them even had to appear in the District Court case. While not trying to excuse his conduct, or lay blame on anyone else but himself, Respondent has suffered because of his litigation beyond just the monetary issues, he is facing the loss of his license to practice law, the damage to his reputation in the community, and legal profession, and he is profoundly sorry for his actions.
“A review of the Transcript of Hearing does not reflect the sentiments of the Respondent as previously stated,'but then again, he was not asked about his opinion or feelings on the matter, he was just trying to defend himself against the charges the best way he knew.”
In his testimony before the panel there is nothing in his testimony that can be construed as remorse for his actions. His remorse now seems to be centered on the harm and potential harm his actions have caused to himself.
Respondent also challenges the propriety of the panel’s statement that his motivation in filing the action was selfishness. Respondent’s motivation could more accurately be described as a desire to get even, to pay back for perceived wrongs, or just his own vindictiveness. However described, his motivation is certainly an aggravating factor. His failure to understand the requirements of defamation/malicious prosecution causes of action, civil discovery, and elements of damage available in such actions is no excuse for his conduct herein.
We find no merit in any of respondent’s challenges to the rationale expressed by the panel in making its recommendation for discipline.
We accept the panel’s recommendation that a 2-year suspension from the practice of law is the appropriate discipline to be imposed herein and its rationale supporting the recommendation. A minority would impose a lesser discipline.
It Is Therefore Ordered that Kevin C. Harris be suspended from the practice of law in the state of Kansas for a period of 2 years, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261).
It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Beier, J.:
This case arises out of a day-long series of shootings in Kansas City, Kansas, during which the victim, Deborah Jackson, was killed from outside her home. Defendant Arthur Herron, who admitted to being in a van with four others at the scene of the fatal shooting, was convicted of first-degree felony murder and conspiracy to commit criminal discharge of a firearm at an occupied dwelling; he was acquitted of the criminal discharge offense underlying the felony murder. In this appeal, he argues that the evidence was insufficient to support his conviction of felony murder and that the district court erred in failing to give self-defense and voluntary and involuntary manslaughter instructions.
Factual and Procedural Background
On the evening of September 20,2004, gunfire riddled the home of Deborah and her husband, John Jackson; Deborah was fatally shot. John, who told police he had been downstairs watching television when he heard shots, saw a white van containing five or six people speed away from the scene.
There had been an ongoing feud between the Jacksons’ son, Eric, and neighborhood brothers Marcus and Sheldon Carson. This feud began several years prior with the murder of Winston Grady, a friend of the Carsons. The Carsons blamed Eric for Grady’s death.
Eric’s girlfriend, Mercedes Sappington, had stayed all night at the Jacksons’ home on September 19, 2004. The next day, Eric borrowed Deborah’s car to take Sappington to get her work clothes. They passed a group of five or six men in white t-shirts at about 27th and Garfield in Kansas City, Kansas. One of the men was Marcus. Sappington knew another one of the men to be Jazwane Jefferson, and she later identified defendant Herron as one who had been in the group. After Eric and Sappington had passed the group, according to Sappington, Marcus came running up, pulled out a gun, and shot at their car.
Later investigation revealed no bullet holes or other damage to Deborah’s car. Other testimony indicated that it was Eric who was armed and that he had been shooting out of his window at the group of men.
When Eric and Sappington returned to the Jacksons’ house midday, Sappington told Deborah and John that they had been shot at. Over Eric’s protests, Deborah and Sappington left in Deborah’s car, ostensibly so that Deborah could take Sappington either home or to work. According to Sappington, however, Deborah asked where the group of men was, and she said she wanted them to stop persecuting her family. Sappington eventually gave Deborah directions to 27th and Garfield, but the group was no longer there.
Deborah then decided to drive to the Carsons’ house. As she drove down the Carsons’ street toward its cul-de-sac, she and Sappington saw a large group of black men, all dressed in white t-shirts. When the group saw their car, the men started running back toward houses. Sappington recognized Marcus, who turned and began shooting at die women. Deborah yelled at Marcus and kept driving. Deborah called John and told him they had been shot at again by Marcus. At trial, John indicated that Deborah had mentioned Herron’s name as one in the group.
The women saw a police officer, told him about the shooting, and asked him to call dispatch. They drove to a cousin’s house near the Carsons’ cul-de-sac, and saw the men putting guns in a truck. Deborah dropped off Sappington and then went to a police station to file a report.
At about 3 p.m., police were notified that the Herron family’s house, where defendant lived with his mother and little brother, had been the target of drive-by gunfire that afternoon. Ballistics testing linked casings discovered at the scene to a Maadi rifle belonging to Eric.
About 3:30 p.m., Kim Carson, Marcus and Sheldons sister, called police and reported another shooting, this one at her house.
Between 9 p.m. and 10 p.m., some close friends of Herron and Marcus, including Brent Brown, a.k.a. “Poopananie,” who was “like [a] little brother” to Herron, were driving down a street when they were cut off and fired upon by individuals in a large, dark blue or black SUV. The group notified Marcus of the shooting, and the consensus was that Eric was behind it.
At about 10:20 p.m., police responded to the shooting that killed Deborah. Eric arrived at the house shortly thereafter and was so beside himself that police asked him to leave so that he would not interfere with the paramedics attempting to assist his mother. He ran away. Police found a large amount of broken glass and acceleration marks in the street outside of the Jacksons’ house.
About 15 minutes after police arrived at the Jacksons’ house, they heard a large amount of rapid gunfire coming from the east. Officers were subsequently dispatched to a house 5 blocks away. That house had also been fired upon.
Near that house, police discovered a white van. Its windows were partially shot or broken out, and it was full of glass and different types of shell casings. The casings were later determined to include 20 7.62 x 39 mm casings, fired from two different AK- or SKS-type guns; 8 .9 mm casings, fired from two different guns; and 4 casings associated with a .40 caliber gun. Additional investigation revealed that the van had been stolen an hour or two before the shooting of Deborah. Ballistics reports indicated that the damage to the van was caused by shots being fired from the inside of the van.
Deborah’s husband suggested to police that they should investigate Marcus and Sheldon Carson. In October, police detained Herron for questioning and Mirandized him. Herron initially said that he was in no way involved in the shooting and that he was in Topeka when it happened. He later admitted that he was in Kansas City, Kansas, and, finally, that he was in the van with four others: Marcus, Jefferson, Steve Coleman, and Joshua Jones.
Detective Greg Lawson later testified that, in an informal, unrecorded interview, Herron said he knew that there had been a shoot-out between Eric and Marcus earlier in the day; that Eric was responsible for shooting at Herron’s house that afternoon; and that Eric had shot at his friends in their car. Herron stated that Coleman stole the van, and the group loaded it. According to Lawson’s testimony, Herron stated it was never the group’s intention to kill anybody; they only intended to shoot at the Jacksons’ house. Herron stated that Jefferson, Jones, and Coleman were armed; he and Marcus were not and did not do any shooting.
Herron later agreed to sign a written waiver of his Miranda rights and made a videotaped statement that was later transcribed. In his statement, he recounted the events of the day Deborah was killed. He stated that, after his own house was shot at, he and his friends got together to talk about “confronting” Eric. Herron said they were not talking about doing anything to the Jacksons, “just talking about trying to find Eric.” When the group heard that Eric had fired on their friends’ car, they decided to act on their desire to find him. Coleman had stolen a van so that the group would not be recognized. Although Herron and Marcus were not armed, the group was aware that Eric probably would be armed and was ready for anything.
At one point, Lawson said:
“Q. [Detective Lawson:] . . . Now last night, I’m referring to my notes here, Arthur, and you told me last night here that you guys went over there just to shoot at the house, not to shoot at anybody.
“A. [Herron:] We didn’t even go over there to shoot at the house. I didn’t tell you we went over there to shoot. We went over there to confront Eric. We never went over there to shoot the house.”
Herron maintained that the group drove up in the van to see if anybody was at home at the Jacksons’, and someone started firing. He did not know who or whether the shots came from inside or outside the van. As soon as the shooting started, he said, he ducked his head, essentially lying on the floor of the van, until it drove away. Herron said the house was completely dark when the van approached it, and he never saw anyone. He said:
“That’s why we was like, we need, I was, that’s all we like Tuck it, let’s go.’ You know what I’m saying, ‘aint nobody here.’ But I guess they was so pent up on house being shot up that they was like Tuck it, we just gonna shoot this house up.’ It was a spare [sic] of the moment thing. It wasn’t like it was planned for us to go over there, shoot and, and somebody accidentally kill Miss Jackson. That ain’t what was supposed to happen .... We wasn’t even supposed to shoot at the house. . . . I think that they just want to do something. I think that they felt that something had to be done.”
Lawson indicated at trial that he had shredded his notes containing information from his initial, unrecorded interview of Herron, the one in which Herron had said the group’s plan was to shoot at the Jacksons’ house but not to kill anyone.
Herron and Jefferson were jointly charged in a third amended information with criminal discharge of a firearm at an occupied dwelling in violation of K.S.A. 21-4219(b); conspiracy to commit criminal discharge of a firearm in violation of K.S.A. 21-3302; and first-degree felony murder in violation of K.S.A. 21-3401(b). At the preliminaiy hearing, a district judge bound Herron over for trial and granted the prosecutor’s unopposed motion to sever. Later, a different district judge, the one who would eventually preside over Herron’s trial, granted Herron’s motion to suppress comments on Herron’s credibility made by investigating officers and by other witnesses. The judge declined to restrict the State’s introduction of evidence about the feud between the families and denied suppression of Herron’s statements from the initial unrecorded interview.
The evidence at Herron’s trial substantially conformed to the facts set out above. The State also admitted an audiorecorded conversation between Herron and his mother, made while Herron was in jail. In that conversation, Herron told his mother that she had made a mistake by talking to police; that he had a “nice little story” he could have told them; and that he was aware other individuals were telling the police about him. The transcript of the conversation is not contained in the record on appeal, and, although the audiotape is, it is veiy difficult to understand the substance of what was said.
The defense proceeded on a theoiy that the group in the van had no preconceived intent to shoot at the Jacksons’ house, that Herron was unarmed, that the Jacksons fired on the van first, and that the three armed men in the van fired back. The defense presented evidence that there was a bloody black t-shirt and a bloody towel at the Jacksons’ house after the shooting and that there was a box of ammunition across the street that Eric must have hid when he left the scene. It suggested either that there was no television in the Jacksons’ basement or that it was turned off when police arrived, implying Deborah’s husband had lied about what he was doing when the shooting occurred. Herron did not testify.
The jury was instructed on criminal discharge of a firearm at an occupied dwelling, conspiracy to commit criminal discharge of a firearm at an occupied dwelling, and first-degree felony murder based on the underlying felony of criminal discharge of a firearm at an occupied dwelling. The jury was also given an aiding and abetting instruction. Herron requested no additional instructions.
After the jury returned its verdict, Herron filed a motion for a new trial based on insufficient evidence to support conspiracy. The district judge denied the motion after a hearing. The judge expressed surprise that the jurors had acquitted on criminal discharge, because “frankly, based upon the evidence, they probably should have found him guilty of that count also.” Herron was sentenced to life imprisonment, plus 32 months to run consecutively. This appeal, pursuant to K.S.A. 22-3601(b)(l), followed.
Sufficiency of the Evidence
Herron argues that, although there was a wealth of evidence regarding the events leading up to the shooting at the Jacksons’ home, the evidence of the actual event was scant and composed only of his statement and Lawson’s testimony. He argues that the State failed to meet its burden to prove that he was in any way involved beyond being present in the van and an associate of the shooters, or that he did or said something to assist in the criminal discharge of a firearm that led to Deborah’s death.
First-degree felony murder is “the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” K.S.A. 21-3401(b). Criminal discharge of a firearm at an occupied dwelling is an inherently dangerous felony that can support a felony-murder conviction, K.S.A. 21-3436(a)(15); conspiracy is not. At this point, Herron does not contest the sufficiency of the evidence supporting his conspiracy conviction. Rather, he focuses on the sufficiency of the evidence to support criminal discharge of a firearm at an occupied dwelling, the charge on which he was acquitted.
Under our precedent, the fact that a defendant is acquitted of an underlying felony does not automatically require reversal of a felony-murder conviction. In State v. Shultz, 225 Kan. 135, 142, 587 P.2d 901 (1978) (quoting State v. McCorgary, 218 Kan. 358, 366, 543 P.2d 952 [1975], cert. denied 429 U.S. 867 [1976]), this court noted that reversal is not required in cases where two verdicts are irreconcilable. See State v. Meyer, 17 Kan. App. 2d 59, 65, 832 P.2d 357 (1992).
In State v. Wise, 237 Kan. 117, 122-23, 697 P.2d 1295 (1985), this court summarized a New York case, People v. Murray, 92 A.D.2d 617, 459 N.Y.S.2d 810 (1983), as Mows: “In [Murray], the court held that the completion of the underlying felony is not an essential element of felony murder, and that an acquittal of the underlying felony is not inconsistent with a conviction of felony murder.” Wise also noted: “At any rate, consistency in a verdict is not necessary; a verdict, though inconsistent, is not erroneous so long as there is sufficient competent evidence to support it. [Citations omitted.]” 237 Kan. at 122. Wise also specificahy held that a charge and conviction of an underlying felony is not necessary to sustain a conviction of felony murder: “We hold that under our statute, K.S.A. 21-3401, an accused need not be prosecuted [for] or convicted of the underlying felony in order to be convicted of felony murder.” 237 Kan. at 123; see State v. Dixon, 279 Kan. 563, 571, 112 P.3d 883 (2005); State v. Beach, 275 Kan. 603, 615-17, 67 P.3d 121 (2003); see also State v. Antwine, 4 Kan. App. 2d 389, 396, 607 P.2d 519 (1980) (“While the verdict may be somewhat inconsistent, substantial competent evidence exists to support it and we find no error. Our Supreme Court has recognized that a jury may sometimes reach its verdict partially out of clemency for the accused.”).
Thus, the jury’s acquittal aside, our charge is to determine whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced a rational fact-finder could have found Herron guilty beyond a reasonable doubt of felony murder based on an underlying felony of criminal discharge of a firearm at an occupied dwelling. State v. Scott, 285 Kan. 366, 372, 171 P.3d 639 (2007); State v. Swinney, 280 Kan. 768, 778, 127 P.3d 261 (2006). While the State must sustain its burden of proof on each element of an offense, circumstantial evidence and the logical inferences therefrom can be sufficient to support a conviction of even the most serious crime. Scott, 285 Kan. at 372; State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000).
Criminal discharge of a firearm at an occupied dwelling is “the malicious, intentional and unauthorized discharge of a firearm at a dwelling ... in which there is a human being.” K.S.A. 21-4219(b). Herron argues, and we agree, that the evidence may be insufficient to establish his guilt for criminal discharge as a principal. But, as he notes, criminal liability may be established on an aiding and abetting theory. Under K.S.A. 21-3205(1), a person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels, or procures the other to commit the crime,
Herron insists that the evidence demonstrates mere presence and association with the others in the van, not that he was willfully furthering the success of the venture. He believes his situation to be akin to that of the witnesses in State v. Simmons, 282 Kan. 728, 148 P.3d 525 (2007). In that case, three witnesses were aware of defendant’s plan to rob a victim, and they ultimately received some fruits of his illegal labors in the form of $100 bills, incentives for silence. The defendant sought reversal of his convictions based on the district court’s failure to caution the jury concerning “accomplice testimony” in accord with PIK Crim. 3d 52.18. We concluded there was no error because, inter alia, the witnesses were not accomplices; they did not participate in the crime. We held that their mere presence during the planning stages, their failure to stop or report the crime, and their receipt of stolen goods absent a pre arranged plan of theft and delivery did not make them accomplices. 282 Kan. at 737-39.
Herron is correct that mere association with a principal who actually commits a crime or mere presence in the vicinity of the crime is itself insufficient to establish guilt as an aider and abettor. However, when a person knowingly associates with an unlawful venture and participates in a way that demonstrates willful furtherance of its success, guilt as an aider and abettor is established. See Simmons, 282 Kan. at 738; State v. Kaiser, 260 Kan. 235, 242, 918 P.2d 629 (1996), disapproved on other grounds State v. Gonzalez, 282 Kan. 73, 145 P.3d 18 (2006); State v. Hobson, 234 Kan. 133, 138, 671 P.2d 1365 (1983).
In this case, Herron’s situation is distinguishable from that of the Simmons witnesses. See 282 Kan. at 736. According to Herron’s unrecorded statements, he did more than listen to his associates’ discussion. He participated in the planning, the mobilization, and the actual attack. We acknowledge that Herron’s videotaped interview conflicted somewhat with his unrecorded statements, as reported to the jury by Lawson; but this is not fatal to the prosecution’s case. A rational factfinder could easily have concluded that Herron was a willing participant in a planned, retaliatory shooting. His friends had traded gunfire with Eric throughout the day; his good friend had been shot while in a car; and his own house had been fired on earlier. Furthermore, Herron’s associate had stolen the van so that they would not be recognized; the group loaded it with pistols, high-powered semi-automatic rifles, and ammunition; they drove to the Jacksons’ house; and they pummeled it with more than 30 rounds before speeding away, ditching the van, and scattering. Herron’s felony-murder conviction was supported by sufficient evidence.
One additional point merits mention. The State urged us to consider that 9 hours passed between the first shooting and the murder, giving Herron a “long time to walk away.” At oral argument before this court, Herron’s counsel urged this court to overrule our decisions in State Wakefield, 267 Kan. 116, Syl. ¶ 3, 977 P.2d 941 (1999), and State v. Smolin, 221 Kan. 149, 152-53, 557 P.2d 1241 (1976), which held that a defendant’s failure to oppose the com mission of a crime can be considered, along with other circumstances, in determining the sufficiency of evidence of aiding and abetting. We do not reach this issue here, because we need not rely on Herron’s failure to walk away or oppose the crime to arrive at our conclusion.
Self-Defense Instruction
Herron next argues that the district court erred in failing to instruct the jury on self-defense because, without such an instruction, the jury had no legal avenue to accept his theory of defense. Defendant acknowledges that, because no such instruction was requested, we review its omission for clear error. See K.S.A. 22-3414(3). Under this standard, we will reverse only if we are firmly convinced that, absent the alleged error, there was a real possibility the jury would have returned a different verdict. State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006).
In a criminal action, the district court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence, even though the evidence thereon is slight or supported only by the defendant’s own testimony. State v. Bell, 276 Kan. 785, 792, 80 P.3d 367 (2003); State v. Barnes, 263 Kan. 249, 265, 948 P.2d 627 (1997). As the State notes, a self-defense instruction is appropriate in a homicide case only if relevant evidence establishes that the defendant honestly and sincerely believed it would be necessary to employ deadly force in self-defense, and a reasonable person would have perceived the necessity of self-defense. K.S.A. 21-3211; see, e.g., Gonzalez, 282 Kan. at 110.
To the extent Herron argues that the evidence supported a self-defense instruction here, he overstates. Neither in his statements to police nor anywhere else in the record did he or any other witness say that the Jacksons fired first or that there was any reasonable basis for Herron or the others in the van to believe it would be necessaiy to employ lethal force. What Herron did say was that the group pulled up to the house in a stolen vehicle; that the house was dark; that he did not see anyone in or around the house; and that he did not know where the first shot came from. The idea of self-defense was introduced in defense counsel’s opening state ment and repeated in closing argument, but it remained merely theory without factual support. Other than the fact that Eric was known to be armed, there was no evidence that Herron or the rest of the group could have harbored either a subjective belief or an objectively reasonable belief in the necessity of deadly force to defend against an imminent attack. In this situation, no instruction on self-defense was warranted. See Bell, 276 Kan. at 793.
Lesser Included Offense Instructions
Herron also claims that the district judge erred in failing to instruct the juiy on lesser included offenses of voluntary and involuntary manslaughter. Again, these instructions were not requested. We thus review the omission for clear error.
As argued by Herron, he was entitled to these instructions because of the possibility the jury could have concluded he engaged in imperfect or failed self-defense. If the jury concluded that he aided and abetted the shooters in their honest but mistaken belief that use of deadly force was necessary, he should have been found guilty only of voluntary manslaughter. If the jury concluded that the belief in the necessity of deadly force was not mistaken but that the course of action based on that belief was unlawful, he should have been guilty only of involuntaiy manslaughter.
We have already held that the evidence in this case could not support a self-defense instruction. It also could not support a lesser included instruction built on a theory of imperfect or failed self-defense. On the facts proved at trial, a jury could not reasonably have convicted Herron of either voluntary or involuntary manslaughter. State v. Calvin, 279 Kan. 193, 202-03, 105 P.3d 710 (2005).
Affirmed.
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The opinion of the court was delivered by
Per Curiam:
Gavin Scott appeals from juiy trial convictions for the capital murder of Elizabeth Brittain, premeditated first-degree murder of Douglas Brittain, aggravated burglary, criminal possession of a firearm, and felony theft. Scott has been sentenced to death for capital murder, with consecutive sentences of life imprisonment with a mandatoiy minimum term of 40 years for premeditated first-degree murder, 51 months for aggravated burglary, 9 months for criminal possession of a firearm, and 7 months for felony theft. We affirm Scott’s convictions except for the crime of premeditated murder which is reversed, set aside the imposition of the death penalty, and remand for another sentencing proceeding to determine whether Scott should be sentenced to death.
Scott does not challenge the sufficiency of the evidence necessary to support his convictions. A narrative of the underlying facts and circumstances as reported in State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), was largely replicated in this proceeding. Additional facts will be provided where appropriate under the issues raised on appeal.
THE LEGAL SUFFICIENCY OF COUNT SIX
Initially, Scott was charged in separate counts with the capital murders of Elizabeth Brittain and Douglas Brittain. K.S.A. 21-3439(a)(6) defines capital murder as the
“intentional and premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct.”
Before trial, Scott filed a motion to dismiss the charges as multiplicitous, alleging both deaths constitute a single crime of capital murder. At a motion hearing, the State did not concede the charges were multiplicitous but did amend the information to charge Scott with the premeditated first-degree murder of Douglas Brittain in count two and the capital murder of Elizabeth Brittain in count six.
Count six of the amended information states:
“[0]n or about September 13, 1996, A.D., in the County of Sedgwick, and the State of Kansas, one Gavin D. Scott, did then and there unlawfully, intentionally and with premeditation Mil Elizabeth G. Brittain, and that the intentional and premeditated killing of Elizabeth G. Brittain, and Douglas G. Brittain, was part of the same act or transaction or two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct.”
Scott contends the district court erred in denying his motion to arrest judgment for the capital murder of Elizabeth Brittain because count six does not allege Scott killed Douglas Brittain, an essential element of the crime. We accept Scott’s premise that an essential element of the capital murder charge is that the defendant killed Douglas Brittain.
The question of whether an information is sufficient to give the district court jurisdiction is a question of law over which this court has unlimited review. State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). In analyzing whether an information is sufficient, this court applies one of two tests, depending on when the objection is raised. State v. Hooker, 271 Kan. 52, 61, 21 P.3d 964 (2001); see State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). When a defendant files a motion for arrest of judgment based on a defective information, the pre-Hall standard applies. Hall, 246 Kan. at 764. Under this standard, an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed. State v. Sanford, 250 Kan. 592, 600-01, 830 P.2d 14 (1992). However, even under the pre-Hall standard, an information is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded. State v. Micheaux, 242 Kan. 192, 197, 747 P.2d 784 (1987).
K.S.A. 21-3439(a)(6) requires that the State’s charging document allege: (1) The defendant killed more than one person; (2) the killings were intentional and premeditated; and, (3) the killings were part of the same act or transaction, or two or more connected transactions. Count six, the capital murder charge, alleges Douglas Brittain was killed intentionally and with premeditation; however, it does not explicitly allege Scott killed him. As already noted, count two does charge Scott with the intentional, premeditated murder of Douglas Brittain. However, because count two was not expressly incorporated by reference into count six, it does not provide a necessary element of the offense. See State v. Garcia, 243 Kan. 662, 667, 763 P.2d 585 (1988), overruled in part on other grounds State v. Grissom, 251 Kan. 851, 892-93, 840 P.2d 1142 (1992); State v. Jackson, 239 Kan. 463, 465-66, 721 P.2d 232 (1986).
The State contends count six should be held sufficient because it is drawn in the language of K.S.A. 21-3439(a)(6) and follows PIK Crim. 3d 56.00-A(l) and (3)(f). It is true an information drawn in the language of the substantive criminal statute is sufficient to withstand legal challenge. K.S.A. 22-3201(b); State v. Micheaux, 242 Kan. at 197. However, it is immaterial whether count six follows PIK Crim. 3d 56.00-A, as the legal sufficiency of a charging document is not dependent upon instructions of law. Parenthetically, Scott argues the trial court’s instruction suffers from the same perceived deficiency as die information — the instruction does not ex-plicidy require the State to prove Scott killed Douglas Brittain. The sufficiency of the instruction to support Scott’s conviction for the murder of Douglas Brittain is raised as a separate issue to be later addressed in this opinion.
Although we have stated a pre-Hall standard emphasizes “technical considerations, rather than practical considerations,” Hooker, 271 Kan. at 61, we have also held “an information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.” Micheaux, 242 Kan. at 199. In Micheaux, we quoted from State v. Morris, 124 Kan. 505, 508, 260 Pac. 629 (1927), that “the day [has] passed in this jurisdiction when criminals can hope to go unwhipped of justice because of the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense.’ ” 242 Kan. at 197.
Applying the above considerations to count six, we conclude the allegation Scott killed Douglas Brittain was necessarily implied by the language used and a commonsense reading of the charge. Consequently, this omission is distinguishable from omissions we have held constitute reversible error under the ^re-Hall standard.
In State v. Howell & Taylor, 226 Kan. 511, 512-14, 601 P.2d 1141 (1979), a conviction for aggravated robbeiy was reversed because the complaint failed to allege the taking was by force or threat of great bodily harm. In State v. Jackson, 239 Kan. 463, 465-67, 721 P.2d 232 (1986), we reversed convictions for two counts of indecent liberties with a child, one because the complaint failed to allege the victim was under 16 years of age, and one because the complaint failed to allege the child was not married to the accused. In State v. Browning, 245 Kan. 26, Syl. ¶ 4, 774 P.2d 935 (1989), we reversed a conviction for second-degree murder because the complaint failed to allege malice. In Hall, 246 Kan. at 746-47, we reversed a conviction of theft because the complaint failed to allege the defendant intended to permanently deprive the owner of possession of his cattle. In Sanford, 250 Kan. at 599-602, we reversed a conviction for aggravated kidnapping because the amended information failed to allege an intent to inflict bodily injury, terrorize the victim, or facilitate flight or the commission of a crime.
In each of the above cases, reversal was predicated on the omission of an essential element that could not be clearly inferred from the language of the charging document. Such is not the case here; rather, this omission is a technical defect of the type we decried in Morris, 124 Kan. at 508. Although it would have been preferable for the State to have explicitly alleged in count six that Scott killed Douglas Brittain, we conclude the omission is not fatal under a pre-Hall standard and did not prejudice the defendant’s ability to prepare a defense or impair his right to a fair trial.
WHETHER COUNT TWO IS MULTIPLICITOUS WITH COUNT SIX
Scott next argues that if the capital murder charge does adequately charge “the intentional and premeditated killing of more than one person” (K.S.A. 21-3439[a][6]), his conviction for the premeditated first-degree murder of Douglas Brittain is multiphcitous.
We have stated “[mjultiplicity is the charging of a single offense in more than one count of a complaint or information. It creates the potential for multiple punishments for a single offense, violating the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.” State v. Harris, 284 Kan. 560, Syl. ¶ 1, 162 P.3d 28 (2007). We have also held “[a] claim of multiplicity raises a question of law subject to unlimited appellate review.” Harris, 284 Kan. 560, Syl. ¶3.
Although multiple punishments for the same crime are constitutionally prohibited, this prohibition extends only to prevent a sentencing court from prescribing greater punishments than the legislature intended. State v. Garcia, 272 Kan. 140, 143, 32 P.3d 188 (2001); see Missouri v. Hunter, 459 U.S. 359, 366-69, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983). The Double Jeopardy Clause is not violated where the legislature specifically authorizes cumulative punishment under two statutes for the same offense. Garcia, 272 Kan. at 143.
The issue is whether the Kansas Legislature intends cumulative punishment for capital murder under K.S.A. 21-3439(a)(6) and first-degree premeditated murder under K.S.A. 21-3401(a). We conclude the answer is “no.”
K.S.A. 21-3107(2) (Furse) states:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) an attempt to commit the crime charged;
“(c) an attempt to commit a lesser degree of the crime charged; or
“(d) a crime necessarily proved if the crime charged were proved. ” (Emphasis added.)
The parties agree that under K.S.A. 21-3107(2)(d) premeditated first-degree murder of Douglas Brittain is a crime necessarily proved once the capital murder of Elizabeth Brittain and Douglas Brittain is proved. However, that does not resolve the issue if there is a clear legislative intent to allow cumulative punishment. See State v. Walker, 283 Kan. 587, 611, 153 P.3d 1257 (2007); see also State v. Schoonover, 281 Kan. 453, 490-91, 133 P.3d 48 (2006) (recognizing it may not always be necessary to apply the same-elements test; there may be circumstances where the legislature’s intent is otherwise clear). The State argues the Kansas Legislature has authorized cumulative punishment for these crimes.
In support of its argument, the State correctly notes K.S.A. 21-3439(a)(6) is patterned after a similar provision in the Virginia Death Penalty Act. See Minutes of the Senate Committee on Judiciary, February 24,1994 (detailing the passage of an amendment to HB 2578 so as to pattern it after the Virginia statute); see also Minutes of the Senate Committee on Judiciary, March 1, 1994 (reconfirming the purpose of the amendment is to include provisions ofVa. Code Ann. §18.2-31[7] [2003] defining capital murder in part as “[t]he willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction”). Moreover, before our legislature enacted K.S.A. 21-3439(a)(6), the Virginia Supreme Court had interpreted its death penalty statute as allowing simultaneous convictions of capital murder for multiple victims and conviction of first-degree murder for one or more of those multiple victims. See Woodfin v. Commonwealth, 236 Va. 89, 372 S.E.2d 377 (1988), cert. denied 490 U.S. 1009 (1989).
In Woodfin, the defendant was convicted of premeditated first-degree murder and capital murder under § 18.2-31(g) of the Virginia Criminal Code for the killing of “more than one person as a part of the same act or transaction.” On appeal, the defendant argued his conviction and punishment for first-degree murder violated double jeopardy. The Virginia Supreme Court disagreed, concluding the Virginia Legislature had clearly indicated its intent to impose multiple punishments. 236 Va. at 96-97. In reaching its conclusion, the court noted it had earlier reviewed the capital murder statutory scheme in Fitzgerald v. Commonwealth, 223 Va. 615, 292 S.E.2d 798 (1982), cert. denied 459 U.S. 1228 (1983), and determined the purpose of the statute was “gradation.” Woodfin, 236 Va. at 96.
In urging us to apply similar reasoning to that of the Virginia Supreme Court, the State also asks this court to consider a prosecutor’s charging dilemmas and potentially unjust results if a first-degree premeditated murder conviction is held to be multiplicitous with a capital murder conviction under K.S.A. 21-3439(a)(6). The State argues that depending on the election of a prosecutor, a defendant could be charged with multiple counts of first-degree premeditated murder or one count of capital murder. If charged and convicted of multiple counts of first-degree premeditated murder, hard 50 sentences could be imposed for each conviction. Conversely, if charged and convicted of one count of capital murder, only one hard 50 sentence could be imposed.
The above argument no longer appears to have merit for crimes committed after July 1, 2004, as the legislature amended K.S.A. 21-4624 and K.S.A. 21-4635 to provide that a defendant convicted of capital murder who does not receive a sentence of death shall be sentenced to life without the possibility of parole. We do not find a quantitative difference between a life sentence without the possibility of parole and multiple hard 50 sentences.
In interpreting §18.2-31(g) of the Virginia Criminal Code, the Virginia Supreme Court inferred a legislative intent to provide enhancement through gradation. See Fitzgerald, 223 Va. at 636-37. This is an acceptable approach to discerning legislative intent in the absence of plain and unambiguous statutory language to the contrary. It does not appear, however, Virginia has a statute comparable to K.S.A. 21-3107(2)(d) (Furse), which precludes multiple convictions for both a crime charged and “a crime necessarily proved if the crime charged were proved.” As discussed in Schoonover, 281 Kan. at 494, that statute is a clear expression of legislative intent that a defendant cannot be convicted of both a crime charged and a lesser included offense arising out of the same conduct.
The State has acknowledged the murder of Douglas Brittain was a crime necessarily proved under the charge of capital murder. Accordingly, under K.S.A. 21-3107(2)(d) (Furse), Scott’s convictions were multiplicitous in the absence of clear and unambiguous legislative intent authorizing multiple prosecutions for the same conduct. We are unable to conclude from a plain reading of K.S.A. 21-3439(a) (6) and its legislative history that the legislature intended to override the acknowledged reach of K.S.A. 21-3107(2)(d). In other instances, the legislature has not hesitated to state when K.S.A. 21-3107(2) is not to be applied. See K.S.A. 21-3436 (precluding application of K.S.A. 21-3107[2] to specific felony offenses regardless of whether such felony is distinct from the alleged homicide). Here, there has been no such declared legislative intent. Accordingly, we conclude Scott’s conviction for the first-degree premeditated murder of Douglas Brittain must be reversed.
DENIAL OF SCOTT’S MOTION TO SUPPRESS STATEMENTS
A. Scott’s Request to Defer Interrogation
Scott next contends the district court erred in finding his statements made during interrogation were admissible. He contends any statements after his request to “finish this in the morning” should have been suppressed. He argues the detectives’ continuing interrogation failed to honor his Fifth Amendment invocation of the right to remain silent.
During the interrogation, Scott initially denied any knowledge of the incident. Approximately midway through the interview, he admitted to having been in the Brittains’ house. Detectives began pressing him for more details of the crime, suggesting to him he owed it to the Brittains’ children to tell them who the killer was and if his accomplice was the shooter. Detective Holtz then attempted to play on an earlier statement by Scott that he loved kids, stating:
“[T]ell us what happened. You gotta help yourself, man. You asked me if I’d help you out, you asked me if this thing was to help you and it is. We had enough to put you at a homicide scene, we need you to tell us what happened cause the other guy’s gonna tell us his side. We’ve gotta have your side of what happened, man. And, and being fuzzy, if you were drunk, if, if it was fuzzy, that’s, that’s cool, but you’re not a cold blooded enough dude that you can wipe out somebody killing somebody, cause you love people and you love those litde kids and you love your own family. And if that happened, that’s something you can’t forget cause you’re too, cause . . . .”
At that point, the following disjointed discussion took place, with the participants talking over one another:
“[Scott]: Can we finish this in the morning, man? Please?
“[Det. Oliver]: Why is that,
“[Det. Holtz]: Can’t you tell us what’s going on man? This, that other dude’s,
“[Scott]: Man, I can’t shoot,
“[Det. Holtz]: telling us what’s happening, okay?
“[Scott]: let’s finish this in the morning, man, I. Let’s finish this in the morning.
“[Det. Holtz]: This other dude’s telling us now, man.
“[Det. Oliver]: It’s real simple,
“[Scott]: Man, I don’t, I don’t,
“[Det. Oliver]: uh, we’re just asking you to pull back,
“[Scott]: remember.
“[Det. Oliver]: in your memory and
“[Scott]: I don’t remember it.
“[Det. Holtz]: You remember being there though, you just told us that, man.
“[Scott]: Yes, I can, I can remember being there, I . . . .”
The detectives then continued the questioning, with Scott providing more details.
We have held a suspect’s invocation of his or her right to remain silent must be scrupulously honored and cuts off further interrogation elicited by express questioning or its functional equivalent. State v. Carty, 231 Kan. 282, 286, 644 P.2d 407 (1982). However, where a suspect makes a statement which may be ambiguous as to whether he or she is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify or may continue questioning without clarifying. State v. Gonzalez, 282 Kan. 73, 106, 145 P.3d 18 (2006). If the interrogator chooses to continue questioning without seeking clarification, he or she runs the risk of a later ruling the invocation was not ambiguous and any subsequent statements are thus inadmissible.
While Scott characterizes his requests to “finish this in the morning” as unambiguous assertions of his right to remain silent, we are unable to agree. At the Jackson v. Denno hearing on the admissibility of the confession, Detective Holtz testified he believed Scott made the requests because he was getting emotional and was embarrassed about doing so. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). He stated Scott seemed to be in control of the situation and, after overcoming his embarrassment, proceeded to tell the detectives what had happened. This testimony, as well as the ambiguous nature of the requests, led the district court to rule as follows:
“[I]t’s not a clear statement, I’m not gonna talk any more. It’s just a request, Can’t we stop. And that’s ambiguous enough, that there’s nothing wrong, there was no lengthy period of time used by the detective or detectives actually, in the plural, to force Mr. Scott into making a statement that was not freely and voluntarily made.”
In asserting his statement was unambiguous, Scott cites Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975). In Mosley the Supreme Court said:
“Through the [suspect’s] exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.” 423 U.S. at 103-04.
Scott argues his request to delay the balance of interrogation was an attempt to control the time at which questioning occurs, and the continuing interrogation was contrary to the holding in Mosley. However, Scott’s argument misreads Mosley, which stands for the proposition that a suspect can control the time at which questioning occurs through the use of his or her power to exercise the rigjit to remain silent. That is, the suspect can decide he or she does not want to answer questions at the time and invoke his or her right to remain silent, thus forcing police to question him or her at a different time. However, in doing so the suspect must still unequivocally invoke the right.
Scott cites two other cases for the proposition that a person subject to interrogation has a right to control the time at which questioning occurs: Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989); and Dodson v. State, 513 A.2d 761 (Del. 1986). However, neither of these cases is supportive of Scott’s argument. In Campaneria, the defendant exphcitly told investigators he did not wish to talk and they should come back later. That is, the defendant used the right to remain silent to control the time at which questioning occurred exactly as contemplated by Mosley: He unambiguously invoked the right and additionally told officers to come back at another time. Similarly, in Dodson, the defendant told police he would make a statement in the future, but would not do so at the present time. 513 A.2d at 762-63. In both cases, the defendants unambiguously communicated to police they would not talk at the present time.
In contrast, Scott never stated he did not wish to talk; he simply indicated a desire to finish his statement the next morning. Because Scott’s statement was not an unequivocal invocation of his right to remain silent, the detectives were not required to cease questioning. See Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994); State v. McCorkendale, 267 Kan. 263, 273, 979 P.2d 1239 (1999); see also Martin v. Wainwright, 770 F.2d 918, 923 (11th Cir. 1985) (holding the defendant’s statement “[c]an’t we wait till tomorrow” was an “equivocal” invocation of the right to remain silent), modified on other grounds 781 F.2d 185 (11th Cir. 1986).
B. Denial of Timely First Appearance
Scott next contends inculpatory statements made during interrogation should be suppressed as the statements resulted from the State’s failure to comply with K.S.A. 22-2901. He further contends this failure resulted in deprivation of constitutional protections un der the Fourth and Sixth Amendments to the United States Constitution. A time line is helpful to understand Scott’s contention:
1. Saturday, September 14,1996. Scott is arrested without a warrant for felony possession of a firearm.
2. Sunday, September 15, 1996. A district judge enters an ex parte probable cause finding and sets bond.
3. Monday, September 16, 1996. Scott is not brought before a magistrate for first appearance on the firearms charge. Scott is interviewed that evening regarding the Brittain murders.
4. Tuesday, September 17, 1996. A district judge enters ex parte probable cause findings regarding the murders and related charges; bond is set.
5. Wednesday, September 18, 1996. The State makes an ex parte request to postpone the first appearance of Scott because the investigation is ongoing and more time is needed to determine whether capital murder charges will be filed and, if so, against whom. The State also informs the district judge the capital defender’s office has expressed a desire to be appointed to defend the more culpable of the two suspects. The district court agrees to postpone Scott’s first appearance until Thursday, September 18, 1996.
6. Thursday, September 19, 1996. Scott has his first appearance.
K.S.A. 22-2901(1) provides:
“[Wjhen an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. If the arrest has been made on probable cause, without a warrant, he shall be taken without unnecessary delay before the nearest available magistrate and a complaint shall be filed forthwith.” (Emphasis added.)
In State v. Crouch & Reeder, 230 Kan. 783, 785-86, 641 P.2d 394 (1982), the general purpose of the statute was held to be as follows:
“K.S.A. 22-2901 is patterned after similar provisions found in Rule 5 of the Federal Rules of Criminal Procedure (18 U.S.C.A. Rule 5) and in statutes adopted in other states. There are many cases which hold that the purpose of requiring a person under arrest to be taken to a magistrate without unnecessary delay is to safeguard individual rights without hampering effective and intelligent law enforcement. ... It has also been stated that the purpose of the rule is to abolish unlawful detention that provides an opportunity for improper pressure by the police before the arrestee has been informed of his rights. [Citation omitted.] It is designed to reduce the opportunity for third-degree practices by the police and to protect the rights of the accused by making certain that he is advised of his constitutional rights by a judicial officer. [Citations omitted.]”
We also stated in Crouch & Reeder that whether an unnecessary delay occurred in bringing an accused before a judge of the district court depends on the facts and circumstances of each case. 230 Kan. at 786. We have also held an unreasonable delay in an accused’s first appearance is not in and of itself a denial of due process unless it in some way prejudices the accused’s right to a fair trial. State v. Goodseal, 220 Kan. 487, 500, 553 P.2d 279 (1976), overruled on other grounds State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980).
The question of unnecessary delay at a first appearance under 22-2901 was recently addressed in the companion case of State v. Wakefield, 267 Kan. 116, 123-24, 977 P.2d 941 (1999). In Wake-field, an assistant district attorney went before the judge the day after the defendant’s arrest and requested a finding that the postponement of both Wakefield’s and Scott’s first appearance for an additional day was a necessary delay, as an appropriate investigation had not been completed. He explained there were multiple crime scenes to process, witnesses to interview, and evidence to inventory before a decision could be made as to whether the defendant should be charged with capital murder. Further, he explained the capital defender’s office had expressed a desire to represent the more culpable of the two codefendants, and therefore, in order to avoid conflicts of interest, it was important to ascertain which of the codefendants was more culpable before charging the crime and appointing counsel. 267 Kan. at 124-25. In Wakefield, we held: “Clearly, Wakefield was not taken for first appearance without delay. However, when considering the circumstances of this case, and the potential conflicts in appointing the capital defender, that delay was necessary.” 267 Kan. at 125. We also held any delay was not prejudicial, as there was no evidence the defendant was subjected to coercive questioning during the additional time prior to his first appearance. 267 Kan. at 125-26.
We conclude Wakefield is controlling and excuses the delay in arraignment for charges arising from the September 13th nighttime invasion of the Brittain residence. However, our decision in Wakefield does not pertain to the delay in Scott’s arraignment for the charge of criminal possession of a firearm. The State has not provided any reasons justifying the failure to arraign on Monday, September 16,1996, and we conclude there was a failure to comply with the unambiguous requirements of K.S.A. 22-2901.
The question, then, is what the remedy for this violation should be. We have held an unwarranted delay in and of itself is not a denial of due process unless it in some way prejudices the accused’s right to a fair trial. Goodseal, 220 Kan. at 500. The burden to show prejudice is on the defendant. State v. Taylor, 217 Kan. 706, 708, 538 P.2d 1375 (1975).
Scott argues his rights were prejudiced by the delay. He notes that, had he been arraigned on Monday, the district court would have advised him of his constitutional and trial rights and appointed counsel to represent him. Although he concedes his right to counsel would have been specific to the gun charge, he contends that had counsel been appointed for him, he would have undoubtedly been advised to invoke his Fifth Amendment rights in any subsequent interrogation and thus would not have given his confession on Monday night.
We have stated that “ ‘a confession obtained during a period of illegal detention is not inadmissible if voluntarily made and not the product of the detention.’ ” Goodseal, 220 Kan. at 501 (quoting State v. Law, 214 Kan. 643, 650, 522 P.2d 320 [1974]); see State v. Stubbs, 195 Kan. 396, 401, 407 P.2d 215 (1965). Conversely, even a voluntary confession that is the product of the detention may be inadmissible. Thus, for instance, the fact a defendant initially declined to speak, but later relented in the face of repeated questioning, might give rise to an inference the delay was the cause of the confession and thus require suppression. However, mere speculation the defendant might not have confessed if he or she had been appointed counsel, and he or she would have been appointed counsel except for the delay, is not sufficient to demonstrate that delay caused the confession. Our case law on this issue preserves the main purpose of a prompt first appearance required under 22-2901, which is to prevent detentions that provide an opportunity for improper pressure from police interrogators before the arrestee has been informed of his or her rights and to reduce the opportunity for third-degree practices. Wakefield, 267 Kan. at 124; Crouch & Reeder, 230 Kan. at 785-86.
We conclude the record on appeal lacks evidence that the length of the delay was a causal factor in Scott’s confession or his confession was somehow coerced. Although it may be speculated Scott might not have confessed had he been appointed counsel, the failure to appoint him counsel did not cause the confession. As a result, Scott has failed to show his right to a fair trial was prejudiced by any unnecessary delay.
JURY INSTRUCTIONS
A. The Capital-Murder Instruction
This issue is related to the first issue raised by Scott. Here, he contends the district court erred in failing to instruct on an essential element of capital murder — that he killed Douglas Brittain.
When considering challenges to jury instructions, we are required to consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006).
The district court’s instruction followed PIK Crim. 3d 56.00-A(l) and (3)(f). However, we conclude the pattern instruction is deficient as it does not require a claim that Scott killed Douglas Brittain. This does not end our analysis. Although the jury was not explicitly instructed that in order to convict Scott of capital murder it had to find he killed Douglas Brittain, the jury was properly instructed with regard to the elements of the premeditated first-degree murder of Douglas Brittain and found Scott guilty of that offense. We conclude the instructions, read as a whole, fairly and properly stated the law and a jury could not have reasonably been misled.
B. Definition of “Premeditation”
Scott next contends the district court’s instruction defining “premeditation” was clearly erroneous. The jury was instructed: “ ‘Premeditation’ means to have thought over the matter beforehand. There is no particular time period for premeditation.” Scott argues the district court erred in overruling his objection to this instruction.
Scott argues this definition of premeditation, and especially the second sentence informing the jury there is no particular time period for premeditation, is erroneous. According to Scott, by informing the jury the only requirement for premeditation is to have thought over the matter beforehand, and then adding that no particular time period is required, the instruction conflates premeditated first-degree murder with intentional second-degree murder.
The first sentence of the instruction is taken directly from PIK Crim. 3d 56.04(b) (1994 Supp.), which we have consistently approved. See State v. Martis, 277 Kan. 267, 298-302, 83 P.3d 1216 (2004); State v. Hebert, 277 Kan. 61, 87-88, 82 P.3d 470 (2004); State v. Pabst (Pabst II), 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002); State v. Wimbley, 271 Kan. 843, 849-50, 26 P.3d 657 (2001); State v. Donesay, 270 Kan. 720, 725, 19 P.3d 779 (2001); State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000); State v. Saleem, 267 Kan. 100, 105, 977 P.2d 921 (1999). As Justice Davis, speaking for the court, stated in Hebert:
“This court has approved PIK Crim. 3d 56.04(b) (1994 Supp.) multiple times, most recently in Jamison, Pabst II, and Wimbley. While we approve of the changes in the definition of premeditation [in PIK Crim. 3d 56.04(b)(2001 Supp.)] and urge trial courts to use tire new PIK instruction on premeditation, we do not depart from our most recent decision approving the PIK Crim. 3d 56.04(b) (1994 Supp.) definition of premeditation. Thus, we conclude that the trial court in this case did not err in rejecting the defendant’s proposed additional instruction.” 277 Kan. at 89.
We also note a premeditation instruction containing language very similar to that contained in the second sentence of the instruction has been held not to constitute error in State v. Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988), and State v. Kingsley, 252 Kan. 761, 771, 851 P.2d 370 (1993). However, neither of these cases was a capital case. Notwithstanding, even if we apply a standard of heightened scrutiny to this issue, the district court’s instruction does not constitute reversible error.
Our conclusion is based on the circumstances of this case as shown by the evidence. There was overwhelming evidence of premeditation beyond any semblance of instantaneous acts. The evidence showed: Scott and Jason Wakefield took at least one gun with them while breaking into the Brittain’s home; they talked about shooting Douglas and Elizabeth Brittain while they were asleep; Scott broke into a gun cabinet just outside the Brittain’s bedroom to get a different gun that was used to shoot the couple; Scott tried to get Wakefield to shoot the couple and took the gun from Wakefield when he refused to shoot them; and Scott then shot both victims as they slept.
We conclude the district court’s instruction defining premeditation was not erroneous. We further conclude under the circumstances shown by the evidence, any error was harmless.
PROSECUTORIAL MISCONDUCT
Generally, Scott raises five different issues of prosecutorial misconduct. Before considering each of his concerns, we note our prior holdings and the framework for analyzing claims of prosecutorial misconduct during closing argument.
A prosecutor has the duty to refrain from making improper, leading, inflammatory, or irrelevant statements to the jury. This duty is heightened in capital cases. State v. Kleypas, 272 Kan. 894, 953, 40 P.3d 139 (2001), overruled in part on other grounds State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004). We employ a two-step analysis in considering claims of prosecutorial misconduct: First, the court must determine whether the prosecutor’s statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence; second, it must determine whether the comments constitute plain error, that is, whether the statements were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. State v. Tosh, 278 Kan. 83, Syl. ¶ 1, 91 P.3d 1204 (2004).
In Tosh, we explained an appropriate analysis under the second step in prosecutorial misconduct cases:
“The first step of the analysis having been met, we turn to the second step— whether the conduct was so gross and flagrant as to prejudice the jury against Tosh and thus deny him a fair trial, thereby requiring reversal.
“The Court of Appeals quoted the following passage from State v. Jones, 273 Kan. 756, 782, 47 P.3d 783, cert. denied 537 U.S. 980 (2002):
‘The appellate court considers three factors to determine whether a new trial should be granted because of prosecutorial misconduct: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. [Citation omitted.]’
“Obviously, the first of these three factors merely repeats in part the statement of the ultimate second step of the analysis: “Whether the misconduct was so gross and flagrant that it denied the defendant a fair trial.’ Thus, the second step of the analysis is essentially directed to whether the misconduct is so prejudicial that it denies the defendant a fair trial. This analysis requires a particularized harmlessness inquiry utilizing the three factors set out in Jones.
“With this clarification of the two-step analysis, then the question of whether the prosecutor’s behavior was gross and flagrant can occupy a sensible and appropriate place in our analysis as the first of three factors to be considered in the harmlessness inquiry. None of these three factors is individually controlling. Further, it is important that the character of the three factors ensures that our harmlessness inquiry in the unique setting of prosecutorial misconduct will be both practical and punitive, as it should be. Prosecutorial misconduct not only injects error into a criminal trial. It violates tire prosecutor’s ethical obligations. But we recognize that there are degrees of seriousness in such misbehavior, and our appellate courts must have the freedom to consider those degrees and their likely effects as drey decide whether the misbehavior before them in a given case merits reversal and remand for new trial.” 278 Kan. at 93-94.
Regarding the third factor — whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of jurors — we said in Tosh:
“This factor sounds most like the harmlessness examination now required by K.S.A. 60-26. ... It also echoes the federal harmless error rule declared in Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) ....
“In recent years tins court and our Court of Appeals have reviewed case after case in which prosecutorial misconduct occurred and die State has argued that such misconduct was harmless error because there was overwhelming evidence against the defendant. The records and oral arguments in those cases have sometimes reflected an attitude on the part of prosecutors that a defendant can be denied a fair trial where the evidence is substantial. Taken to its logical conclusion, acceptance or endorsement of this attitude would lead to a rule that the greater the evidence against a defendant, the less right that defendant has to a fair trial. Neither law nor basic justice can tolerate such a rule. Denial of a fair trial violates the due process rights of the guilty defendant just as surely as those of the innocent one.
“These observations counsel caution in our evaluation of the third of the three harmlessness factors in prosecutorial misconduct cases. We must avoid using this factor and the weight of the inculpatory evidence as a default, a shortcut past careful comparison of the often competing influences of the first two factors. We also regard the prosecutorial misconduct case as an appropriate one for application of the dual standard discussed in [State v.] Donesay, 265 Kan. [60,] 88[, 959 P.2d 862 (1998)]. Before the third factor can ever override the first two factors, an appellate court must be able to say that both the K.S.A. 60-261 and the Chapman harmlessness tests'have been met. If this can be said, then certainly it will also be true ‘that the misconduct would likely have little weight in the minds of jurors.’ ” 278 Kan. at 96-98.
We now turn to Scott’s complaints.
A. Exhorting Jurors to Honor Their Oath
Scott complains of the following remark by the prosecutor toward the conclusion of his initial closing argument: “This man sits before you guilty. That’s what we’re asking you to do, to honor your oath as you have done and return that verdict.”
By telling jurors to honor their oath and return a verdict of guilty, die prosecutor implied that to do otherwise would be a violation of duty. Such comments have been found to be improper by a variety of courts. See State v. Reynolds, 264 Conn. 1, 182-84, 836 A.2d 224 (2003); Redish v. State, 525 So. 2d 928, 930-31 (Fla. Dist. App. 1988); People v. Nelson, 193 Ill. 2d 216, 226-28, 737 N.E.2d 632 (2000); People v. Kidd, 175 Ill. 2d 1, 50-51, 675 N.E.2d 910 (1996); State v. Coleman, 74 Wash. App. 835, 838-40, 876 P.2d 458 (1994); Dysthe v. State, 63 P.3d 875, 885 (Wyo. 2003). The Connecticut Supreme Court stated in Reynolds: “[I]t generally is improper for the state to argue that the jurors’ oath obligates them to return a particular verdict because such language poses a risk of diverting the jury from its duty of deciding the case on the basis of the evidence and the applicable law.” 264 Conn, at 183. In People v. Nelson, the Illinois Supreme Court characterized this type of argument as “wholly inappropriate.” 193 Ill. 2d at 227.
A comment telling the jurors they should honor their oath and they would do so by finding the defendant guilty is also similar to statements urging the jury to “do its job” that the United States Supreme Court disapproved in United States v. Young, 470 U.S. 1, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985). In Young, the Court noted such an appeal, whether by the prosecutor or defense counsel, “has no place in the administration of justice.” 470 U.S. at 9; see also United States v. Mandelbaum, 803 F.2d 42, 43-44 (1st Cir. 1986) (decrying a prosecutor s comment to the jury to do its duty and stating: “There should be no suggestion that a jury has a duty to decide one way or the other; such an appeal is designed to stir passion and can only distract a jury from its actual duty: impartiality.”).
B. Referring to Scott as a “Murderer” and “Killer”
The remarks complained of occurred after the prosecutor had argued the evidence pointed toward Scott as the actual triggerman rather than Wakefield. The prosecutor then stated:
“And, if you haven’t done it already, take a good look into the eyes of a killer. Look long and look hard, because he sits about eight feet from you. There sits before you a murderer of two people.”
A short time later, the prosecutor, while talking about one of the Brittains’ daughter’s discovery of Scott coming in through her bedroom window, stated: “Look at the killer before you, because [the daughter’s] last and final eternal memory of her parents in her house is what you saw.” The prosecutor also referred to Scott as a killer at other times during closing. Two of those remarks, “[Wake-field’s] not the real killer. This is the killer,” and that the evidence shows “that’s the killer before you,” appear to have been attempts to differentiate Scott’s conduct from Wakefield’s. However, two other comments, referring to Scott as a “killer who murders helpless, innocent people in their sleep, who spend their lifetime with their children collecting these possessions so they can have a family,” and asking the juiy to “return into this courtroom and tell this killer that’s what he is,” were not proper.
This court’s jurisprudence regarding prosecutors referring to a defendant as a “killer” or “murderer” makes a distinction regarding the manner in which the statement is used. In State v. Cravatt, 267 Kan. 314, 333-34, 979 P.2d 679 (1999), we noted: “[W]e have in the past allowed the prosecution to refer to the defendant as a ‘murderer so long as nothing in the statement predicts consequences of acquittal or intensifies any kind of ‘fear in the neighborhood’ sentiment.” In Cravatt, we found the prosecutor’s comment to the jury that it should not “let a murderer go free because of these half-baked theories the defense has presented to you” was not improper. 267 Kan. at 332; see also State v. Collier, 259 Kan. 346, 355, 913 P.2d 597 (1996) (holding a prosecutor’s statement that if the jury was mad at his actions, it should be mad at him but should not “let a murderer go free because of it” was not improper).
However, we have found comments characterizing the defendant as a “murderer” or “killer” to be improper in other contexts. In State v. McCray, 267 Kan. 339, 347, 979 P.2d 134 (1999), we held the prosecutor’s remark directing the jury to “[ljook at [the defendant], ladies and gentlemen, you have to look at him. That’s what a murderer looks like, ladies and gentlemen,” was improper because it injected the prosecutor’s personal opinion of the defendant’s guilt. Similarly, in State v. Hooker, 271 Kan. 52, 67, 21 P.3d 964 (2001), we held the prosecutor’s remark that the defendant had “cold-blooded killing eyes” was improper for the same reason. Also, in State v. Scott, 271 Kan. 103, 114, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001), we stated the prosecutor’s remark to the jury, “Yeah, you have about eight feet separating you from the hands of a killer right here,” was inflammatory and therefore improper.
The consistent rule to be taken from the cases is that a prosecutor may refer to the defendant as a murderer or killer in the course of arguing the evidence shows the defendant committed the murder. See Cravatt, 267 Kan. at 332-34. However, where such statements imply the prosecutor believes something other than the evidence shows the defendant to be a murderer, such as the prosecutor’s belief the defendant “looks like a murderer” or has “cold-blooded killing eyes,” or the statements do not relate to the evidence but are simply made to inflame the jury, such as a comment telling the jurors they are “eight feet from a killer,” the argument will be held improper. See Scott, 271 Kan. at 114; Hooker, 271 Kan. at 67; McCray, 267 Kan. at 347-48.
We conclude some of the prosecutor’s comments were proper and others were improper. The remarks arguing Scott, rather than Wakefield, was the killer were not improper, but were instead fair comment based on the evidence. However, other remarks were clearly improper. The prosecutor’s statement asking the jury to “take a good look into the eyes of a killer” was improper. See Scott, 271 Kan. at 114. Although it did not imply, as in Scott, that the defendant’s eyes were “killing eyes,” neither did it bear any real relation to a comment on the evidence. Likewise improper were the prosecutor’s comments directing the jury to “[l]ook at the killer before you,” and referring to Scott as a “toiler who murders helpless, innocent people in their sleep, who spend their lifetime with their children collecting these possessions so they can have a family,” and asking jury to “return into this courtroom and tell this toller that’s what he is.”
C. Stating that Scott Kept Lying
Scott next complains of the prosecutor’s statement that, during Scott’s interrogation, after the detectives had told him he had no reason to he if he was not the triggerman, “he continues to deceive, he keeps on lying.” Scott contends that, through this statement, the prosecutor injected his personal opinion Scott was a Mar.
We have previously held a prosecutor’s comment on the credibility of a witness is improper. See State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000). This is because “the ultimate conclusion as to any witness’ veracity rests solely with the juiy.” 268 Kan. at 507.
However, a look at the prosecutor’s statement in context demonstrates he was not commenting on the general credibility of the defendant. During this portion of the closing argument, the prosecutor stated:
“And, finally, Holtz’s point, Gavin, at the very end of the interview, towards the end, before he slips up and mentions Trey, if you’re not the triggerman, you have no reason to he to me. But he continues to deceive, he keeps on lying, and then he slips up at the very end. He says, yeah, Trey took the steering wheel when I lit a cigarette.”
We conclude the prosecutor was referring to the fact the defendant continued to he to police by telling them he did not know the identity of his accomplice, before finally admitting “Trey” was his accomplice. Thus, the statement was not a comment on the defendant’s credibility, but was instead a fair comment on the evidence.
D. Vouching for Credibility of Witness
Scott contends the prosecutor made statements that constituted vouching for the credibility of Johnny McClung. In referring to the testimony of McClung, the jailhouse informant who testified Scott had confessed committing the crimes to him, the prosecutor stated:
“Once Gavin’s in jail, where you can’t come and go, he doesn’t have the guts to tell Johnny McClung, I murdered a mom and dad in their bed in their sleep and I left them for their children for breakfast. He doesn’t have the guts to say that. But you know that he told that to Johnny Dale McClung. You know that. Did Johnny just make it up? Did Johnny just make it up and we happened to have Gavin in the house with fingerprints? You know that he told Johnny that.
“And, if he told Johnny that, you think Johnny just gratuitously added, oh, by the way, he said he murdered them as they came down the stairs? Johnny McClung, for all the problems he has, is telling you what this man told him. How could it be otherwise?”
It is improper for a prosecutor to “vouch” for the credibility of a witness. See State v. Davis, 275 Kan. 107, 122, 61 P.3d 701 (2003). However, it is not improper for a prosecutor to argue that of two conflicting versions of an event, one version is more likely to be credible based on the evidence. See State v. Anthony, 282 Kan. 201, 210, 145 P.3d 1 (2006); Davis, 275 Kan. at 122. The prosecutor’s statement in this case does not constitute vouching. Instead, his argument regarding McClung’s credibility was based upon the evidence; that is, the content of McClung’s trial testimony.
E. Reference to Facts Outside the Evidence
The final argument made by Scott regarding prosecutorial misconduct concerns the prosecutor’s statement about a part of his confession. During closing, the prosecutor stated:
“Gavin tells Detective Holtz, I don’t do burglaries. It’s a three hour interview. If you listen to it for 60 hours over the past two years, you’d know it by heart. But let me remind you what Gavin says. I don’t do burglaries, even though Travis^— that’s the guy that he was arrested with on Saturday, the 14th — even though Travis tried to get me to do a burglary. And you remember what Gavin tells Holtz. He says, yeah, Travis tried to get me to do a burglary, he told me where the house was, he told me what’s inside the house, and he told me where all the stuff was inside the house, but I don’t do burglaries anymore. Certainly begs the question, doesn’t it, ladies and gentlemen.”
Although not entirely clear, it appears the prosecutor’s point was, although Scott said he did not do burglaries, all indications from the evidence were that Scott committed the burglary in question.
Scott argues the prosecutor’s statement to the effect that he had listened to the confession tape for 60 hours and knew it by heart was improper because (1) there was no evidence in the record as to how long the prosecutor actually listened to the tape, and (2) the statement was designed to make the juiy believe the prosecutor’s recollection of the tape was especially accurate.
The statement complained of is a comment on a matter outside the evidence and is improper. See Pabst, 268 Kan. at 507 (holding it is improper for a prosecutor to refer to facts outside the evidence). However, Scott does not argue the prosecutor’s subsequent characterization of his statement was somehow false or misleading. It is not reasonable to conclude the comment was anything more than a harmless retrospection.
F. Conclusion
We have noted numerous instances of improper comment by the prosecutor in closing argument. While these improper comments do not appear to be gross and flagrant misconduct, reasonable minds may disagree as to whether the sheer number of such remarks demonstrate ill will on the part of the prosecutor. How ever, ill will is only one of the factors we must consider in determining whether Scott was denied a fair trial.
The evidence of Scott’s guilt of each crime for which he was convicted was direct and overwhelming. Scott confessed to the robbery, and his fingerprints were on the upstairs gun case from which the murder weapon was taken. Further, evidence Scott was the actual triggerman came not only from a jail house informant, but from statements by Scott to two of his friends or acquaintances. The only defense witness during the guilt phase of the trial was Dr. Robert Geffner, a professor of psychology, who testified Scott suffers from a brain impairment and posttraumatic stress disorder. Dr. Geffner opined that Scott does not have a good verbal memory and is prone to exaggerate. It is apparent the jury chose to believe the State’s witnesses and did not believe Scott fabricated his own culpability for these horrific crimes.
Under the circumstances of this case, refusal to grant a new trial based on the few prejudicial remarks of the prosecutor is not inconsistent with substantial justice. See K.S.A. 60-261. Further, even applying a standard of heightened scrutiny to this issue, we conclude beyond a reasonable doubt the evidence of guilt was of such a direct and overwhelming nature that the prejudicial remarks of the prosecutor were likely to have had little weight in the minds of the jurors.
CLOSING ARGUMENT
Scott contends the district court erred in allowing the prosecutor to read to the jury statements made by Wakefield’s defense attorney during closing argument in the Wakefield trial. We agree the district court erred but conclude the error was harmless.
At the center of this controversy is the alleged jailhouse confession by Scott to a cellmate, Johnny McClung. Before trial, the district court granted Scott’s motion to use in closing argument certain statements made by the prosecutor in the Wakefield prosecution casting aspersions on the reliability of McClung’s testimony. The district court also allowed die State to read additional statements made by the prosecutor relating to McClung’s reliability. It appears the district court reasoned the prosecutor’s statements from the Wakefield trial qualified as admissions of a party opponent under K.S.A. 60-460(g). These rulings are not in issue but offered in explanation as to the circumstances precipitating the ruling and issue presented on appeal.
Over objection of Scott’s attorney, the district court also allowed the prosecutor to read to the jury the following statements made by Wakefield’s attorney, Richard Ney, during closing argument in the Wakefield trial:
“[Ney]: Gavin Scott tells Johnny McClung, ‘Hey, I did it. I killed them. I shot ’em. Yet this guy was with him, this guy Trey. He didn’t do — he didn’t do anything. In fact, he sat down, broke down and cried like a baby. And I put a gun on him and made him get out of there. Made him leave.’ ”
Courts interpreting the same hearsay exception as K.S.A. 60-460(g) under Federal Rule of Evidence 801(d)(2) have held the prior inconsistent statement of a prosecutor in one trial is generally admissible in a retrial of the same person. See United States v. DeLoach, 34 F.3d 1001, 1005-06 (11th Cir. 1994); United States v. Orena, 32 F.3d 704, 716 (2d Cir. 1994); United States v. Salerno, 937 F.2d 797, 811 (2d Cir. 1991), revd on other grounds 505 U.S. 317, 120 L. Ed. 2d 255, 112 S. Ct. 2503 (1992). However, these authorities are not supportive of the district court’s ruling admitting the statement of another defendant’s attorney during a prior trial.
We conclude the district court erred in allowing the State to read to the Scott juiy the above statements made by Wakefield’s attorney in the former trial. Wakefield’s attorney is not “a representative” of Scott under 60-460(g). In fact, Richard Ney was attempting to demonstrate Scott was the actual perpetrator of the murders, not Wakefield. Clearly, Wakefield’s penal interests were directly contrary to those of Scott. There is no legal basis for admission of this obvious hearsay.
Nevertheless, there has been an inadequate showing of prejudice to Scott resulting from the use of the Ney statements. Ney’s representation of McClung’s statements was consistent with McClung’s testimony during Scott’s trial. We conclude the use of the statements constitutes harmless error beyond a reasonable doubt. The error had no likelihood of having changed the result of the trial. See State v. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001).
CUMULATIVE ERROR
Scott contends cumulative errors denied him his right to a fair trial. We do recognize cumulative trial errors may be so great as to require reversal of a defendant’s conviction where, under the totality of the circumstances, they prejudice the defendant and deny him or her a fair trial. Kleypas, 272 Kan. 894, 1001, 40 P.3d 139 (2001). However, no prejudicial error may be found under the rule of cumulative error if die evidence is overwhelming against the defendant. State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006).
We have already identified instances of trial error. We balance the cumulative impact of that error against the evidence presented demonstrating Scott’s guilt. We conclude the evidence presented to the jury was overwhelming that Scott committed the crimes for which he has been convicted. Consequently, even considered together, the trial errors did not prejudice Scott’s right to a fair trial or influence the verdicts of the jury.
GUILT PHASE CONCLUSION
Scott’s convictions of capital murder, aggravated burglary, felony theft, and criminal possession of a firearm are affirmed. We reverse Scott’s conviction of first-degree premeditated murder because it is multiplicitous with his conviction of capital murder and, therefore, in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and §10 of the Kansas Constitution Bill of Rights. We turn next to the sentencing issues raised on appeal.
CONSTITUTIONALITY OF THE WEIGHING EQUATION
Scott contends the weighing equation set forth in K.S.A. 21-4624(e) violates the cruel or unusual punishment prohibition of § 9 and the due process provision of § 18 of the Kansas Constitution Bill of Rights. K.S.A. 21-4624(e) (Furse) provides, in pertinent part:
“If, by unanimous vote, the juiy finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law.”
Section 9 of the Kansas Constitution Bill of Rights states:
“All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
Section 18 of the Kansas Constitution Bill of Rights states: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
Scott contends the weighing equation violates §§ 9 and 18 of the Kansas Constitution Bill of Rights because it mandates a sentence of death when aggravating and mitigating circumstances are found to be in equal balance, i.e., equipoise, thus preventing the jury in “doubtful cases” from expressing its “reasoned moral response” to the mitigating evidence.
A brief history of the issue of the constitutionality of the weighing equation of K.S.A. 21-4624(e) will provide the necessary framework for the parties’ arguments and our analysis of this issue.
In State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), a divided majority of this court held the weighing equation of K.S.A. 21-4624(e) was unconstitutional under die Eighth and Fourteenth Amendments to the United States Constitution because it mandates death when the aggravating and mitigating circumstances are in equipoise. However, rather than strike the statute as unconstitutional on its face, the court applied the avoidance doctrine to construe the statute in a constitutional manner. So construed, K.S.A. 21-4624(e) required a sentence of death only where the aggravating circumstances outweigh the mitigating circumstances.
While Scott’s appeal was pending, the issue of the constitutionality of the weighing equation once again came before the court in State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004). This court held the weighing equation was facially unconstitutional under the Eighth Amendment, and overruled that part of Kleypas in which the court applied the avoidance doctrine to construe K.S.A. 21-4624(e) to apply constitutionally. State v. Marsh, 278 Kan. at 535. The United States Supreme Court granted the State’s petition for writ of certiorari and reversed, holding the weighing equation of K.S.A. 21-4624(e) does not violate the Eighth Amendment prohibition against cruel and unusual punishment. Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006); see Kansas Supreme Court’s supplemental opinion to State v. Marsh, 282 Kan. 38, 144 P.3d 48 (2006).
An in-depth discussion of the decisions in Kleypas and State v. Marsh will not be presented here. The main point for consideration is that both of those decisions construed and applied the Supreme Court’s death penalty jurisprudence in determining whether the weighing equation in K.S.A. 21-4624(e) violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The decisions in Kleypas and State v. Marsh were by bare majorities, with vigorous dissents on the majority’s construction and application of Supreme Court precedent.
Most specifically, the key point of disagreement was whether the issue of the constitutionality of the weighing equation had already been resolved in Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), overruled on other grounds Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002). In Walton, the United States Supreme Court upheld the constitutionality of Arizona’s weighing formula, which required a sentence of death where one or more aggravating circumstances are found to exist and “there are no mitigating circumstances sufficiently substantial to call for leniency.” Walton, 497 U.S. at 644.
The majority in Kleypas distinguished Walton, noting the language in the Arizona statute was not the same as that used in K.S.A. 21-4624(e). Kleypas, 272 Kan. at 1006-07. Thus, the Kleypas majority concluded, the issue of equipoise was not raised or decided in Walton. Kleypas, 272 Kan. at 1007. The majority in Kleypas and State v. Marsh agreed Walton did not control resolution of the issue. See State v. Marsh, 278 Kan. at 536-37; Kleypas, 272 Kan. at 1006-07, 1008-09. The dissenters in both cases, on the other hand, argued Walton was dispositive of the issue and compelled the conclusion that the weighing equation did not violate the Eighth Amendment. Kleypas, 272 Kan. at 1125-27, 1130 (Davis, J., dissenting); Kleypas, 272 Kan. at 1140-41 (Abbott, J., dissenting); State v. Marsh, 278 Kan. at 557-59 (Davis, J., dissenting); State v. Marsh, 278 Kan. at 564-72 (Nuss, J., dissenting).
In a five to four decision, the United States Supreme Court reversed State v. Marsh, holding Walton controlled: “Contrary to Marsh’s contentions and the Kansas Supreme Court’s conclusions, . . . the question presented in the instant case was squarely before this Court in Walton.” Kansas v. Marsh, 548 U.S. at 171. Applying Walton, the Court held: “Kansas’ death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise.” 548 U.S. at 173.
After concluding Walton controlled, the Court went on to hold that, even if it did not, “the general principles set forth in our death penalty jurisprudence would lead us to conclude that the Kansas capital sentencing system is constitutionally permissible.” 548 U.S. at 173. The Kansas capital sentencing system meets the individualized sentencing requirements imposed by Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), and its progeny because it “permits a jury to consider any mitigating evidence relevant to its sentencing determination” and “does not interfere, in a constitutionally significant way, with a juiy’s ability to give independent weight to evidence offered in mitigation.” 548 U.S. at 175. The weighing equation “merely channels a jury’s discretion by providing it with criteria by which it may determine whether a sentence of life or death is appropriate.” 548 U.S. at 177. Kansas’ system “provides the type of ‘ “guided discretion,” ’ Walton, 497 U.S. at 659 (citing Gregg [v. Georgia, 428 U.S. 153, 189, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)]), we have sanctioned in Walton, Boyde (v. California, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct. 1190 [1990]), and Blystone [v. Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078 (1990)].” 548 U.S. at 177. Moreover, the mandatory language of the statute “does not prevent a Kansas jury from considering mitigating evidence”; thus, it is not “impermissibly mandatory.” 548 U.S. at 177-78.
Scott’s appeal had been held in abeyance pending the outcome of Kansas v. Marsh. After that decision, Scott’s motion requesting permission to file a supplemental brief to address, among other issues, the constitutionality of K.S.A. 21-4624(e) under the Kansas Constitution was granted, and supplemental briefs were filed.
The United States Supreme Court’s decision in Kansas v. Marsh is the final word on the question of whether K.S.A. 21-4624(e) violates the Eighth and Fourteenth Amendments to the United States Constitution. See Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665, cert. denied 361 U.S. 846 (1959) (under Article VI of the United States Constitution, “the interpretation placed on the Constitution and laws of the United States by the decisions of the Supreme Court of the United States is controlling upon state courts and must be followed. This we may add is true regardless of views of state courts even though such decisions are inconsistent with their prior decisions.”). However, this court, as the ultimate expositor of state law (see Mullaney v. Wilbur, 421 U.S. 684, 691, 44 L. Ed. 2d 508, 95 S. Ct. 1881 [1975]), has the authority to interpret our state constitutional provisions independent of federal interpretation of corresponding provisions. State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993). Scott urges us to interpret §§ 9 and 18 of our Kansas Constitution Bill of Rights to provide a “greater degree of rationality and reliability ... in the determination of whether death is an appropriate punishment” than the Supreme Court has required under the Eighth Amendment as construed in Kansas v. Marsh.
In addressing the constitutionality of a statute, our standard of review is clear. Whether K.S.A. 21-4624(e) is constitutional raises a question of law over which we exercise an unlimited standard of review. See State v. Myers, 260 Kan. 669, Syl. ¶ 3, 923 P.2d 1024 (1996), cert. denied 511 U.S. 1118 (1997). When the constitutionality of a statute is questioned, we are guided by the following well-established rules:
“The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.” State v. Myers, 260 Kan. 669, Syl. ¶ 4.
In determining the constitutionality of21-4624(e), we must first determine the meaning of “cruel or unusual” punishment as that phrase appears in § 9. Do we interpret § 9 to have a broader or different meaning than that given to the Eighth Amendment to the United States Constitution? If the answer is “yes,” what is our interpretation, and does it render 21-4624(e) unconstitutional?
Scott contends core principles of death penalty jurisprudence, embraced by our majority opinions in Kleypas and Marsh, cannot be disregarded under § § 9 and 18 of the Kansas Constitution Bill of Rights. He argues that in Kansas v. Marsh, the United States Supreme Court ignored its own precedent on the principles underlying the doctrine of individualized sentencing, which require that the sentencing jury be permitted to give effect to any relevant mitigating evidence so it can express its reasoned moral response to tire mitigating evidence — a fundamental requirement for reliability in the determination that death is the appropriate sentence. In short, Scott argues the Supreme Court was wrong. Accordingly, Scott urges this court to find that §§ 9 and 18 of the Kansas Constitution Bill of Rights demand “a greater degree of rationality and reliability than the Eighth Amendment in the determination of whether death is an appropriate punishment for an individual offender.” He asks this court to reaffirm, under § 9 and § 18 of the Kansas Constitution Bill of Rights, its holding in Kleypas, 272 Kan. at 1016, that fundamental fairness requires a “tie goes to the defendant” when life or death is at issue.
Scott’s first argument for an independent construction of § 9 focuses on the textual difference between the Eighth Amendment, which prohibits “cruel and unusual punishment” and § 9, which prohibits “cruel or unusual punishment.”
The State counters by arguing that while this court has noted its right to construe state constitutional provisions independent of federal interpretations of the federal Constitution, it has not traditionally done so. Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d 1225 (1996); State v. Morris, 255 Kan, 964, 981, 880 P.2d 1244 (1994). Moreover, with respect to § 9 specifically, the State argues this court has consistently declined to interpret that provision more broadly than the Eighth Amendment. The State cites State v. Scott, 265 Kan. 1, 5, 961 P.2d 667 (1998); State v. Spain, 269 Kan. 54, 59, 4 P.3d 621 (2000); and State v. Kleypas, 272 Kan. at 1051.
In Scott, involving a challenge to the public disclosure provisions of the Kansas Offender Registration Act as cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights, the court stated:
“Although we have the right to interpret our Kansas Constitution in a manner different than the United States Constitution has been construed, State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993), we have not traditionally done so. See Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d 1225 (1996). The wording of both clauses is nearly identical, and we will look to constructions of both provisions in reaching our conclusions herein.” 265 Kan. at 5.
In State v. Spain, in a challenge to the hard 40 sentencing scheme, the court construed § 9 in harmony with the Eighth Amendment, noting, “this court has never extended greater protection to our citizens beyond the federal guarantees.” 269 Kan. at 59 (citing Schultz, 252 Kan. at 826). It does not appear, however, it was specifically argued in Spain that the language of § 9 justified a different interpretation.
In Kleypas, the defendant argued the death penalty was per se unconstitutional under § 9 of the Kansas Constitution Bill of Rights. The argument rested primarily on the difference in lan guage between the two provisions. The court, however, noted it “has generally not drawn a distinction between the analysis of whether a sentence is cruel or unusual under the state constitution and whether a sentence is cruel and unusual under the federal Constitution.” 272 Kan. at 1047.
The court also rejected Kleypas’ argument that the historical record behind the adoption of § 9 indicated the framers deliberately chose the phrase “cruel or unusual” over “cruel and unusual,” justifying a more broad interpretation. 272 Kan. at 1047-48. Significantly, the issue before the Kleypas court did not concern the proportionality of the sentence imposed.
Scott invites us to reexamine the historical record and the case law of other jurisdictions in support of his argument. We have done so and find no support for his challenge to the constitutionality of the weighing equation in K.S.A. 21-4624(e). His argument does not go to tire proportionality of the sentence imposed, but to the process in determining against whom the death penalty should be imposed. Regardless of whether the set of punishments encompassed by the term “cruel or unusual” is larger than the set which could be described as both “cruel and unusual,” the process itself used to arrive at the decision is not implicated. Scott’s argument must fail.
Our decision today should not be construed to preclude future interpretation of § 9 when considering the proportionality of a criminal sentence. In such a circumstance, we are free to further consider the historical record and decide whether § 9 should be interpreted in a manner which deviates from that given to the Eighth Amendment by the United States Supreme Court.
Scott’s next argument is that because the United States Supreme Court’s decision in Marsh was a retreat from the constitutional principles this court relied upon in Kleypas in finding K.S.A. 21-4624(e) unconstitutional, this court has a duty to independently consider the constitutionality of that statute under our own state constitution. In support, Scott cites State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980), in which this court found § 9 of the Kansas Constitution Bill of Rights allowed a proportionality analysis after the Supreme Court in Rummell v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980), retreated from the proportionality analysis under the Eighth Amendment.
The court in McDaniel expressed its dissatisfaction with the Rummell decision and noted specifically it had relied upon the now obsolete federal precedents in formulating its proportionality test set forth in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). 228 Kan. at 184. Finding that Rummell was “a retreat from the philosophy which spawned the [test] recited in Freeman,” and that the Rummell Court has “rejected] the proposition that disproportionality analysis is required by the 8th Amendment,” the Court stated:
“The Rummell decision forces this court to reconsider its reliance on the 8th Amendment prohibition against cruel or unusual punishment. According to Rummell we are not required by the 8th Amendment to question the length of prison sentences.” 228 Kan. at 184.
The McDaniel court then looked to the state constitution and held “section 9 of the Kansas Bill of Rights may be invoked against an excessive or disproportionate sentence.” 228 Kan. at 185. The court reaffirmed the Freeman analysis, stating that “[t]he techniques applied in Freeman will continue to guide our constitutional inquiry.” 228 Kan. at 185.
Scott also cites State v. Kennedy, 666 P.2d 1316, 1323 (Or. 1983). In Kennedy, the Oregon Supreme Court refused to adopt the United States Supreme Court’s decision in Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), in which the Court held double jeopardy bars a retrial only where judicial or prosecutorial misconduct was intended to provoke the defendant’s request for a mistrial. He also cites State v. Dubose, 699 N.W.2d 582, 591-94 (Wis. 2005), a case in which the Wisconsin Supreme Court refused to follow the United States Supreme Court’s decision in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972) (allowing admission of unduly suggestive out-of-court identifications if rehable under the totality of the circumstances).
Scott is correct that state courts have relied upon their own state constitutions to depart from United States Supreme Court deci sions deviating or retreating from a broader rule of constitutional law. See State v. Miller, 29 Conn. App. 207, 222-23, 614 A.2d 1229 (1992) (Connecticut courts have construed provisions in their state constitution to provide greater protection than the federal Constitution, especially “where the United States Supreme Court ‘has created exceptions to or deviated from rules previously enunciated’ ”); People v. Scott, 79 N.Y.2d 474, 497, 593 N.E.2d 1328 (1992) (“An independent construction of our own State Constitution is particularly appropriate where a sharp or sudden change in direction by the United States Supreme Court dramatically narrows fundamental constitutional rights that our citizens have long assumed to be part of their birthright.”); State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990) (Connecticut Supreme Court refused to follow United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 [1984], which created the good faith exception to the exclusionary rule — a clear departure from prior law); People v. Bullock, 485 N.W.2d at 870-74, 885 (Michigan Supreme Court relied on its own constitution to reject the Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. at 965, in which the Court characterized its prior decisions concerning whether the Eighth Amendment contains a proportionality guarantee as “simply wrong.”).
Scott’s argument on this point is based on the premise that the Supreme Court in Kansas v. Marsh retreated from the core principles of individualized sentencing developed by Furman and its progeny. We do not agree with Scott’s premise. In Kansas v. Marsh, no prior precedents were called into question or rejected, no exception to a prior rule was created, nor were any new legal principles announced. In fact, the decision rested primarily on Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), as controlling. Additionally, the Court analyzed the statute under the Court’s mitigation jurisprudence, discussing and applying Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990); Blystone v. Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078 (1990); Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982); Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978); Franklin v. Lynaugh, 487 U.S. 164, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988); Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976); and Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2736 (1972). In its holding, the Court specifically stated the “Kansas capital sentencing system is constitutionally permissible” within “the general principles set forth in our death penalty jurisprudence.” (Emphasis added.) 548 U.S. at 173. Thus, we conclude the decision in Kansas v. Marsh is nothing more than the application of well-settled law to the particular statute at issue.
Although Scott decries the decision as a retreat from the core principles underlying the requirement of individualized sentencing, Scott’s argument that the Kansas v. Marsh majority was wrong is based on the same cases the majority relied upon in Kansas v. Marsh. Moreover, those same cases underlie Justice Souter’s dissent in that case. See Kansas v. Marsh, 548 U.S. at 204-11 (Souter, J., dissenting) (citing and discussing Furman, Gregg, Blystone, and Boyde, among others). Furthermore, Scott also relies heavily on the majority decision in Kleypas, which was based on the same fine of cases. See Kleypas, 272 Kan. at 1010-16.
The disagreement in Kleypas, State v. Marsh, and Kansas v. Marsh is not a disagreement over what the applicable capital sentencing jurisprudence under the Eighth Amendment is or should be. All of the justices of the two courts agree on the core principles. Rather, the disagreement is over whether K.S.A. 21-4624(e), requiring the imposition of the death penalty when the aggravating and mitigating circumstances are in equipoise, satisfies or violates those core principles.
Because Kansas v. Marsh was not a decision in which the United States Supreme Court created a new legal principle deviating or retreating from its prior capital sentencing jurisprudence, decisions in which state courts turned to their own constitution to depart from Supreme Court decisions altering, abrogating, or overruling prior constitutional principles do not provide persuasive support for doing so in this case.
We conclude Scott’s arguments are not persuasive that K.S.A. 21-4624(e) should be held unconstitutional under §§ 9 and 18 of the Kansas Constitution Bill of Rights.
Anticipating our decision, Scott also argues the Supreme Court’s interpretation of K.S.A. 21-4624(e) will require additional jury instructions in capital sentencing proceedings beyond those presently given. Scott argues sentencing juries will need to be informed equipoise is not the determining factor and told they have the power to dispense mercy after weighing aggravating and mitigating circumstances.
Scott also argues that under Kansas v. Marsh, the jury must be given an instruction of a presumption of life imprisonment as the appropriate sentence and a death sentence can only be imposed if the presumption is overcome by the State. For support Scott cites the instruction on the presumption of innocence in PIK Crim. 3d 52.02.
We do not find Scott’s arguments to support additional instructions persuasive. Kansas v. Marsh cannot be read to require an additional step beyond weighing. In fact, the United States Supreme Court specifically reasoned a decision that the aggravating and mitigating factors are in equipoise is a decision supporting imposition of the death penalty:
“[Marsh’s] argument rests on an implausible characterization of the Kansas statute — that a jury’s determination that aggravators and mitigators are in equipoise is not a decision, much less a decision for death — and thus misses the mark. [Citations omitted.] Weighing is not an end; it is merely a means to reaching a decision. The decision the jury must reach is whether life or death is the appropriate punishment. The Kansas jury instructions clearly inform the jury that a determination that the evidence is in equipoise is a decision for — not a presumption in favor of — death. Kansas jurors, presumed to follow their instructions, are made aware that: a determination that mitigators outweigh aggravators is a decision that a life sentence is appropriate; a determination that aggravators outweigh mitigators or a determination that mitigators do not outweigh aggravators — including a finding that aggravators and mitigators are in balance — is a decision that death is the appropriate sentence; and an inability to reach a unanimous decision will result in a sentence of life imprisonment. So informed, far from the abdication of duiy or the inability to select an appropriate sentence depicted by Marsh and Justice Souter, a juiy’s conclusion that aggravating evidence and mitigating evidence are in equipoise is a decision for death and is indicative of the type of measured, normative process in which a jury is constitutionally tasked to engage when deciding the appropriate sentence for a capital defendant.” 548 U.S. at 179-80.
Scott has also misconstrued the Supreme Court’s discussion as to whether K.S.A. 21-4624(e) creates a presumption for life or death. In its majority opinion, the Court noted the State bears the burden at every turn in attempting to secure a sentence of death, and the defendant is not required to bear any burden beyond presenting mitigating circumstances. See Kansas v. Marsh, 548 U.S. at 178-79. Read in context, the Court’s comment does not require a jury instruction of a presumption that life imprisonment is the appropriate sentence and that a sentence of death can only be imposed if the presumption is overcome by the State.
CONSTITUTIONALITY OF RELAXED EVIDENTIARY STANDARD
Scott argues the relaxed evidentiary standard for the penalty phase set forth in K.S.A. 21-4624(c) is unconstitutional because it is incompatible with fundamental due process.
K.S.A. 21-4624(c) provides, in pertinent part:
“In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible.”
Scott contends that, because the Court in Ring v. Arizona, 536 U.S. 584, 605, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), found the aggravating circumstances in the Arizona death penalty statute are the “functional equivalent of an element of a greater offense,” due process requires they be proved only by the rules of evidence.
In United States v. Fell, 360 F.3d 135 (2d Cir. 2004), the court held the Federal Death Penalty Act’s relaxed evidentiary standard was constitutional, stating the relaxed evidentiary standard does not “ Impair the reliability or relevance of information at capital sentencing hearings,’ ” but rather “ ‘helps to accomplish the individualized sentencing required by the constitution.’ ” 360 F.3d at 145-46 (quoting United States v. Jones, 132 F.3d 232, 242 [5th Cir. 1998]). Further, it appears that every other court to consider the question has rejected Scott’s contention. See, e.g., United States v. Lee, 374 F.3d 637, 638 (8th Cir. 2004); United States v. Montgomery, 2007 WL 1031282 (Order) (W.D. Mo. 2007); United States v. Diaz, 2007 WL 656831 (Order) (N.D. Cal. 2007); United States v. Gooch, 2006 WL 3780781 (Order) (D. D.C. December 20, 2006); United States v. Cheever, 423 F. Supp. 2d 1181, 1193-95 (D. Kan. 2006); United States v. Rodriguez, 380 F. Supp. 2d 1041, 1054 (D. N.D. 2007); United States v. Le, 327 F. Supp. 2d 601, 606-08 (E.D. Va. 2004); United States v. Taylor, 302 F. Supp. 2d 901, 905-06 (N.D. Ind. 2003); United States v. Haynes, 269 F. Supp. 2d 970, 984-85 (W.D. Tenn. 2003); United States v. Johnson, 239 F. Supp. 2d 924, 945-46 (N.D. Iowa 2003); United States v. Davis, 2003 WL 1837701 (Order) (E.D. La. April 9, 2003); United States v. Matthews, 246 F. Supp. 2d 137, 142-46 (N.D. N.Y. 2002); United States v. Lentz, 225 F. Supp. 2d 672, 682-84 (E.D. Va. 2002); State v. Berry, 2003 WL 1855099 (Tenn. Crim. App. 2003).
We hold the evidentiary standard provided by K.S.A. 21-4624(c) is consistent with the United States Supreme Court’s “all relevant evidence” doctrine. See Jurek v. Texas, 428 U.S. 262, 276, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976) (‘What is essential is that the jury have before it all possible relevant information about tire individual defendant whose fate it must determine.”); Greggv. Georgia, 428 U.S. 153, 204, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976); see also Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) (Brennan, J., concurring) (in capital cases “the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death”). It provides for an individualized inquiiy, and does not limit the discretion of the sentencer to consider relevant circumstances offered by the defendant. K.S.A. 21-4624(c) provides that only relevant evidence is to be admitted, thus assuring the evidence actually has probative value. Moreover, evidence secured in violation of the United States Constitution or the Kansas Constitution is inadmissible. Consequently, we conclude the relaxed evidentiary standard is sufficient to protect the defendant’s right to a fair trial and does not violate either the United States or Kansas Constitutions.
CONSTITUTIONALITY OF NOTICE PROVISIONS
Scott contends the notice provisions provided for in K.S.A. 21-4624(a) are unconstitutional because they do not require the State to specify the aggravating factors in the information. K.S.A. 21-4624(a) states:
“If a defendant is charged with capital murder, the county or district attorney shall file written notice if such attorney intends, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney not later than five days after the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of capital murder, shall be sentenced to life without the possibility of parole, and no sentence of death shall be imposed hereunder.”
Scott argues that under Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), aggravating factors, as elements of the offense, must be set forth in the charging document.
Scott’s argument is not persuasive. Jones and Apprendi both stand for the proposition that, under the grand jury provision of the Fifth Amendment and the notice and jury trial provision of the Sixth Amendment, any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. However, Scott fails to recognize that the requirement that such facts be charged in an indictment only applies in federal cases, as the Fifth Amendment’s grand jury provision does not apply to the states through the Fourteenth Amendment. See Ring v. Arizona, 536 U.S. at 597 n.4; Apprendi, 530 U.S. at 477 n.3; Hurtado v. California, 110 U.S. 516, 538, 28 L. Ed. 232, 4 S. Ct. 111 (1884).
Second, the only notice requirement for state cases would be through the Sixth Amendment. See State v. Hunt, 357 N.C. 257, 274, 582 S.E.2d 593 (2003) (stating “[t]he only possible constitutional implication that Ring and Apprendi may have in relation to our capital defendants is that they must receive reasonable notice of aggravating circumstances, pursuant to the Sixth Amendment’s notice requirement”). The question, therefore, is whether Kansas’ notice procedures concerning aggravating circumstances comport with the Sixth Amendment.
The Sixth Amendment requires only that the defendant be given “notice and an opportunity to respond.” Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir. 1992). Such “[njotice must be sufficient to make the opportunity useful.” 962 F.2d at 618.
Under K.S.A. 21-4624(a) the State is required to provide the defendant with notice of the State’s intent to seek the death penalty no later than 5 days following arraignment. Once done, the defendant is put on notice the State will attempt to prove at least one of the eight aggravating factors listed in K.S.A. 21-4625. Of those eight, the State must notify the defendant of the specific factors it will be attempting to prove “prior to the sentencing proceeding.” K.S.A. 21-4624(c). This notice is sufficient to give the defendant a meaningful opportunity to respond to the aggravating factors against him or her. The eight aggravating factors are sufficiendy distinct that, in almost all cases, it will be apparent to the defendant prior to trial which factors the State will be relying on. Even in the event there is some ambiguity as to the factors that will be relied on, the State is required to provide the exact factors prior to the penalty phase. This is sufficient to satisfy the Sixth Amendment notice provision.
JUROR MISCONDUCT DURING FIRST PENALTY PHASE TRIAL
Scott argues juror misconduct during die first penalty phase trial denied him a verdict of life. He contends that because of this misconduct, a sentence of death could not be constitutionally imposed.
In the first penalty phase trial, the jury deliberated for 2 days before returning a verdict of death. Following the verdict, Scott filed a motion for new trial, arguing several of the jurors had improperly read from the Bible and other religious material during deliberations. The trial court decided it was appropriate to recall die jurors and hold a hearing.
At the hearing, it was clear a Bible and some copied pages from a Roman Catholic catechism were brought in, and passages relating to mercy and punishment were consulted by some jurors. However, no juror testified the extraneous material affected his or her deliberations in any way. Nevertheless, the trial court determined it was important in a capital case that the verdict be free from outside influences, and therefore the verdict should be set aside and a new penalty phase trial conducted.
Scott argues he would have received a verdict of life had the jury not been influenced by outside sources, and Kansas law and the Fifth Amendment require that he not again be subjected to the death penalty. In support of this contention, he cites K.S.A. 21-4624(e) and this court’s opinion in State v. Stafford, 255 Kan. 807, 878 P.2d 820 (1994), as well as Bullington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981).
K.S.A. 21-4624(e) (Furse) provided, in pertinent part: “If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence of imprisonment as provided by law.” In 2004, the legislature clarified that, under these conditions, the law provided for a sentence of life imprisonment without the possibility of parole. K.S.A. 21-4624(e) (Torrence).
In State v. Stafford, we held that, where the trial court discharged a juror and substituted an alternate juror in a hard 40 proceeding without reasonable cause because the original juror was not able to reach a decision, the defendant could not thereafter be sentenced to the hard 40. 255 Kan. at 823-26. We reasoned:
“In the hard 40 context, a hung juiy is not an undecided jury. By statute [citation omitted], a hung jury results in a sentence of imprisonment for life with eligibility for parole. Thus, to replace a juror who may cause a jury to be unable to reach a unanimous vote to recommend the hard 40 sentence is to deprive the defendant of a verdict.” 255 Kan. at 825.
Scott’s argument is flawed. There is no evidence the outside material deprived him of a verdict. While the jurors had been deliberating for 2 days, there is no evidence that, absent the outside material, they would have been unable to reach a decision. No juror testified the outside material influenced deliberations in any way. Thus, neither K.S.A. 21-4624(e) nor Stafford is applicable.
Further, contrary to Scott’s argument, the Fifth Amendment does not mandate that he not again be subjected to the death penalty. In Bullington, the United States Supreme Court found the Fifth Amendment’s Double Jeopardy Clause applies to the penalty phase of a bifurcated proceeding and, because the defendant had previously received a sentence of life which had later been reversed, he could not thereafter be subjected to the death penalty for the same offense. 451 U.S. at 445-47. However, in the case at hand, Scott did not receive a verdict of life, nor is there any proof he would have received one absent the improper consultation of the outside religious material. As a result, this argument fails.
FAILING TO INSTRUCT JURORS THEY NEED NOT UNANIMOUSLY AGREE REGARDING THE EXISTENCE OF MITIGATING CIRCUMSTANCES
Scott contends the trial court erred in failing to instruct the jurors they need not unanimously agree regarding the existence of mitigating circumstances. At an instructional conference, the defendant did lodge a timely objection to Instruction No. 5 given by the court and did request supplemental language that was rejected. Scott believes the trial court’s instruction without the requested supplemental language prevented the jury from considering any mitigating circumstances not unanimously found to exist.
In considering a claim that a juiy instruction in the penally phase of a capital trial prevented the juiy from giving proper consideration to mitigating evidence, our standard of review is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of con stitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990). However, we consider the instructions as a whole and do not isolate any one instruction. Even if erroneous in some way, instructions do not result in reversible error if they properly and fairly state the law as applied to the facts of the case and could not reasonably have misled the jury. State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006).
Instruction No. 5 reads:
“Mitigating evidence is not evidence offered as an excuse for the crimes of which Mr. Scott has been found guilty. Rather, it is any evidence, which in fairness and mercy, may serve as a basis for a sentence other than death.
“A mitigating circumstance is that which in fairness or mercy may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, although it does not justify or excuse the offense. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case.
“The appropriateness of the exercise of mercy can itself be a mitigating factor you may consider in determining whether the State has proved beyond a reasonable doubt that the death penalty should be imposed.
“You may consider as mitigating any circumstance which tends to justify the penalty of life in prison. You must consider all evidence of mitigation. Mitigation may be established by any evidence introduced by either party. You may not refuse to consider any evidence in mitigation. The law requires you to consider all mitigating evidence. Therefore you are not permitted to refuse to consider such evidence.” (Emphasis added.)
Scott’s proposed instruction to supplement the above instruction reads:
“A mitigating circumstance does not have to be proven beyond a reasonable doubt but by a mere preponderance of the evidence. You must find a mitigating circumstance exists if there is any substantial evidence to support it. Additionally, unlike aggravating circumstances, which must be proven and agreed upon unanimously, mitigating circumstances must be determined on an individual basis by each jury member.”
Before proceeding with an analysis, we also note two other instructions given by the trial court pertaining to the issue presented.
Instruction No. 7, in explaining the potential verdicts, informed the jury:
“At the conclusion of your deliberations, you shall sign the verdict form upon which you agree. The verdict form provides for the following alternative verdicts:
“1. That you are unable to reach a unanimous verdict; or
“2. That you have a reasonable doubt that aggravating circumstances are not outweighed by any mitigating circumstances, and Mr. Scott should be sentenced by the court as proved by law; or
“3. That you unanimously find beyond a reasonable doubt that there are one or more aggravating circumstances and they are not outweighed by any mitigating circumstances, and sentence Mr. Scott to death.” (Emphasis added.)
Instruction No. 8 given by the trial court explains the weighing process to the jury as follows:
“In making the determination whether aggravating circumstances exist that are not outweighed by any mitigating circumstances, you should keep in mind that your decision should not be determined solely by the number of aggravating or mitigating circumstances that are shown to exist.
“If you find beyond a reasonable doubt that there are one or more aggravating circumstances and that they are not outweighed by any mitigating circumstances, then you may impose a sentence of death, if you sentence Mr. Scott to death, you must designate upon the verdict form with particularity the aggravating circumstances which you found beyond a reasonable doubt.
“If you have a reasonable doubt that aggravating circumstances are not outweighed by any mitigating circumstances, then you shall so indicate on your verdict form, and Mr. Scott will not be sentenced to death but will be sentenced by the court as provided by law.” (Emphasis added.)
The issue Scott raises was considered in Kleypas. There, the jury was instructed as follows:
“It is not necessary that all jurors agree upon particular facts and circumstances in mitigation of punishment.
“If you as a juror determine that there are facts or circumstances in mitigation of punishment sufficient to outweigh the evidence of aggravating circumstances, then you must not return a verdict of death.” (Emphasis added.) Kleypas, 272 Kan. at 1077.
This court held the first sentence of the instruction was sufficient to address the concern the jury might believe unanimity was required as to mitigating circumstances. 272 Kan. at 1079. However, we noted:
“[Ajny instruction dealing with the consideration of mitigating circumstances should state (1) they need to be proved only to the satisfaction of the individual juror in the juror’s sentencing decision and not beyond a reasonable doubt and (2) mitigating circumstances do not need to be found by all members of the jury in order to be considered in an individual juror’s sentencing decision.” 272 Kan. at 1078.
Kleypas was decided by this court after Scott’s juiy trial. However, the first sentence of the above instruction in Kleypas is not present in Instruction No. 5 or No. 8.
In addition to the instructions we have emphasized, we have considered all of the other instructions given by the trial court in an effort to decide whether jurors could have reasonably been misled to believe unanimity was required as to mitigating circumstances. Read together, the instructions repeatedly emphasize the need for unanimity as to any aggravating circumstances found to exist. Conversely, the trial court’s instructions do not inform the jury as to a contrary standard for determining mitigating circumstances. The jury is left to speculate as to the correct standard. Under these circumstances, we conclude there is a substantial probability reasonable jurors could have believed unanimity was required to find mitigating circumstances. We hold failure of the trial court to provide the jury with a proper standard for determining mitigating circumstances constitutes reversible error. See Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988) (holding a death sentence should be vacated where there was a substantial probability reasonable jurors may have thought they could only consider fhose mitigating circumstances unanimously found to exist). Accordingly, we must reverse the death sentence and remand to the district court for a new capital sentencing hearing.
Scott claims a number of additional errors in the penalty phase, which could be disregarded because of our decision reversing the death sentence and remanding for a new sentencing proceeding. We will, however, address the remaining issues to provide guidance because they could arise in the retrial of the penalty phase. See State v. White, 279 Kan. 326, 342, 109 P.3d 1199 (2005).
THE AGGRAVATING CIRCUMSTANCE OF CREATING A RISK OF DEATH TO MORE THAN ONE PERSON
Scott argues this court should set aside the jury’s finding he created a great risk of death to more than one person. See K.S.A. 21-4625(2) (“The defendant knowingly or purposely killed or created a great risk of death to more than one person.”). Specifically, Scott makes three arguments: (1) a finding based on the death of Douglas Brittain is unconstitutional as it duplicates an element of capital murder; (2) a finding based on great risk of death to the three Brittain children is not supported by the evidence; and, (3) in any event, the trial court failed to give the jury an alternative acts instruction.
A. Death of Douglas Brittain
The intentional premeditated murder of Douglas Brittain is an element of the capital murder conviction. Scott argues that allowing duplication of the element as an aggravating circumstance constitutes double counting and fails to channel jury discretion in the weighing process. We do not agree with Scott’s analysis.
In order for a capital sentencing scheme to pass constitutional muster, it must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983). One way in which sentencing schemes do so is in the use of aggravating circumstances. However, the use of aggravating circumstances is not an end in itself, but rather is simply a means of narrowing the class of death-eligible persons; the narrowing function can be performed by jury findings at either the sentencing phase of the trial or the guilt phase. Lowenfield v. Phelps, 484 U.S. 231, 244-45, 98 L. Ed. 2d 568, 108 S. Ct. 546 (1988).
In Lowenfield, the Supreme Court explained:
“Here, the ‘narrowing function’ was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that ‘the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.’ The fact that the sentencing juiy is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more.” (Emphasis added.) 484 U.S. at 246.
Lowenfield seems to dictate a similar result in the instant case. Scott, however, argues Lowenfield is inapplicable as Louisiana’s death penalty scheme does not provide for the weighing of aggravating circumstances against mitigating circumstances. Scott relies on the United States Supreme Court’s opinion regarding the Mississippi death penalty scheme in Stringer v. Black, 503 U.S. 222, 117 L. Ed. 2d 367, 112 S. Ct. 1130 (1992).
Scott is correct in that Stringer does distinguish Lowenfield in some respects with regard to weighing states. However, it does not address the issue before us. Rather, Stringer stands for the following proposition: Where a scheme uses an aggravating factor in deciding who shall be eligible for the death penalty, that aggravating factor cannot be one which, as a practical matter, fails to guide the sentencer’s discretion or is vague or imprecise. See 503 U.S. at 235-36. Stringer does not indicate that, in a weighing state, it is impermissible to use the same factor in both the guilt and penalty phase. Rather, Stringer reasons that in weighing states, it is not correct to say that because there is narrowing at the guilt phase, the use of aggravating factors at the penalty phase is of no constitutional moment. See 503 U.S. at 234-36.
We believe the issue decided in Lowenfield is the same as now before us: whether the use of the same factor as both a narrowing qualification for the death penalty at the guilt phase and an aggravating factor at the penalty phase fails to narrow the class of persons convicted of murder who are eligible for the death penalty. The vast majority of weighing jurisdictions that have considered this question have also held such a use is constitutionally permissible. See Kuenzel v. State, 577 So. 2d 474, 487-88 (Ala. Crim. App. 1990); Johnson v. State, 308 Ark. 7, 17, 823 S.W.2d 800 (1992); People v. Marshall, 50 Cal. 3d 907, 945-46, 269 Cal. Rptr. 269, 790 P.2d 676 (1990); Oken v. State, 343 Md. 256, 301-02, 681 A.2d 30 (1996); State v. Lafferty, 20 P.3d 342, 376-77 (Utah 2001); see also Deputy v. Taylor, 19 F.3d 1485, 1501-02 (3d Cir. 1994) (interpreting Delaware law); Revilla v. Gibson, 283 F.3d 1203, 1215 (10th Cir. 2002) (arising out of Oklahoma law); United States v. Chanthadara, 230 F.3d 1237, 1261 (10th Cir. 2000) (interpreting federal Death Penalty Act and stating: “[T]he duplication of a factor between the gateway factors and aggravating factors does not undermine the constitutional validity of the sentence); Johnson v. Singletary, 991 F.2d 663, 668-69 (11th Cir. 1993) (interpreting Florida law).
Scott also argues that using the same conduct to make a crime capital murder and also using it as an aggravating factor is contrary to Kansas law. In support of this contention, he cites PIK Crim. 3d 56.00-C, which provides that “[aggravating circumstances are those which increase the guilt or enormity of the crime or add to its injurious consequences, but which are above or beyond the elements of the crime itself.” Scott points out that because the intentional killing of more than one person is an element of capital murder, using it as an aggravating factor would mean it was not a circumstance above or beyond the element of the crime itself. However, although PIK instructions are generally well thought out, they do not trump the obvious intent of the legislature. See State v. Kleypas, 272 Kan. at 1063-64 (holding a PIK instruction was contrary to Kansas law). The legislature clearly intended for the conduct to be used both as a qualifier and an aggravator. PIK Crim. 3d 56.00-C should be modified to conform to Kansas law.
We join the majority of jurisdictions that have concluded duplicating an element of the crime as an aggravating circumstance in the penalty phase of the trial is constitutional and conforms to legislative intent.
B. Sufficiency of the Evidence
Scott next argues the evidence is insufficient to establish the killings created a great risk of death to the Brittain children. He contends any danger to the Brittain children was too remote in time to the murders to satisfy the aggravating factor under K.S.A. 21-4625(2).
This court has previously analyzed this same aggravating factor in the context of hard 40 sentences and has held that for the factor to apply, there must be
“a direct relationship between creating the great risk of death to another and the homicide. The risk need not be contemporaneous with the homicide, but it must occur in the course of committing the charged murder.” State v. Spain, 263 Kan. 708, 718, 953 P.2d 1004 (1998).
A survey of Kansas cases demonstrates the issue presented is fact intensive and not easily resolved. See, e.g., State v. Brown, 272 Kan. 809, 818-22, 37 P.3d 31 (2001) (occupant of house where victim bludgeoned to death); State v. Lopez, 271 Kan. 119, 139-40, 22 P.3d 1040 (2001) (defendant shot at the driver of a moving vehicle in which another passenger was present); State v. Saiz, 269 Kan. 657, 667, 7 P.3d 1214 (2000) (mother and brother of the victim were also shot at during a drive-by shooting which resulted in victim’s death); State v. Spain, 263 Kan. at 714-18 (after jail escape, defendant took hostage); State v. Follin, 263 Kan. 28, 47, 947 P.2d 8 (1997) (defendant stabbed his two young daughters at relatively the same time); State v. Stafford, 255 Kan. 807, 818-19, 878 P.2d 820 (1994) (victims both shot as they entered the house together).
We can only speculate as to why the State decided to argue great risk of death to the three Brittain children should be considered by the jury. Very likely the State was concerned because of Scott’s argument of double counting the murder of Douglas Brittain. In any event, because we have decided tire killing of Douglas Brittain supports this aggravating circumstance and ordered a new penalty phase trial, it is uncertain whether the issue would arise again on remand. Consequently, there is no reason for us to now decide this issue.
C. Failure to Instruct on Unanimity
Scott’s final argument with regard to the “great risk of death to more than one person” aggravating factor is that the district court erred in failing to instruct the jurors they had to unanimously agree on a specific act to prove the aggravating circumstance. Scott contends that where, as here, the State relied on two alternate bases for the aggravating factor, the jury must be instructed it must unanimously agree on which act was the basis for die finding of the aggravating factor. For the same reason as above, there is no reason for us to address this issue because it is not certain whether it would arise again on remand.
THE AGGRAVATING FACTOR SCOTT COMMITTED THE CRIME FOR PURPOSE OF RECEIVING MONEY
Scott contends the jury should not have been allowed to consider the aggravating factor that “[t]he defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetary value.” See K.S.A. 21-4625(3). He first argues 21-4625(3) only applies to murder-for-hire situations or where the defendant kills the victim to obtain an inheritance. He also argues a broader reading of the statute is unconstitutional under die Eighth Amendment. We have addressed this question in a manner adverse to Scott’s argument in the context of the hard 40 aggravating factors. See State v. Cromwell, 253 Kan. 495, 513, 856 P.2d 1299 (1993). In Cromwell, we stated: “The legislature has said that it is particularly egregious to take the life of another to obtain property” and “[t]he language of the statute is not expressly limited to cases involving murder for hire.” 253 Kan. at 513; see also State v. Deiterman, 271 Kan. 975, 993, 29 P.3d 411 (2001) (finding aggravating circumstance satisfied where defendant shot victim in order to obtain victim’s wallet); State v. Murillo, 269 Kan. 281, 288-89, 7 P.3d 264 (2000) (finding aggravating circumstance satisfied where defendant committed the crime while trying to obtain cocaine); State v. Vontress, 266 Kan. 248, 259, 970 P.2d 42 (1998) (finding aggravating circumstance satisfied where defendant committed the crime for the purpose of obtaining money and drugs) disapproved in part on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006); State v. Richardson, 256 Kan. 69, 83, 883 P.2d 1107 (1994) (finding aggravating circumstance satisfied where defendant shot victim in order to take her purse).
Scott recognizes our prior precedent, but argues the outcome should be different in a death penalty case. He contends: (1) our hard 40 jurisprudence is not applicable in the context of a death penalty case because aggravating factors in death cases must “gen uinely narrow” the class of persons subject to the death penalty and be defined by some specificity; and (2) the plain language of the statute indicates it should be limited to murder-for-hire and other schemes rather than a murder/burglary or murder/robbery.
Scott is correct in arguing our hard 40 jurisprudence does not translate directly to our interpretation of the death penalty. We have stated our jurisprudence in hard 40 cases is not controlling in death penalty cases, and vice versa. State v. Kleypas, 272 Kan. at 1009; State v. Spain, 269 Kan. 54, 60, 4 P.3d 621 (2000). Nevertheless, the aggravating factor at issue for the death penalty, found in K.S.A. 21-4625(3), is exactly the aggravating factor previously in the statute when it described the aggravating factors for the hard 40. When the Kansas Death Penalty Act was passed in 1994, and the statutes relating to the hard 40 were deleted and replaced with those applicable to the death penalty, 21-4625 was not changed; rather, the aggravating factors in it were simply made applicable to the death penalty rather than the hard 40. See L. 1990, ch. 99, sec. 5; L. 1994, ch. 252. Thus, we conclude legislative intent was not to modify its meaning or the circumstances under which it would apply in capital cases.
The remaining question is whether this construction would comport with the Eighth Amendment. Scott argues the Eighth Amendment requires aggravating factors to channel the sentencer’s discretion by clear and objective standards providing specific and detailed guidance.
In Godfrey v. Georgia, 446 U.S. 420, 427-28, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980), the Court held that a death penalty scheme must provide a “ ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not’ ” and the scheme must “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ”
Scott fails to provide any reasons why application of the aggravating factor at issue to murder/robbery or murder/burglary would violate these requirements. The point of the channeling is to distinguish murders which are eligible for the death penalty from murders which are not. See Zant v. Stephens, 462 U.S. at 877. Because the legislature can rationally determine that murder committed in order to facilitate a robheiy or burglary is worthy of greater punishment than a murder not for that purpose, the aggravating factor at issue is a valid one.
FAILURE TO DEFINE “THE CRIME”
Scott contends the trial court erred in fading to explicitly instruct the jury that “the crime,” for the purpose of the aggravating factor that “[t]he defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetary value,” meant the capital murder of Elizabeth Brittain. He argues without such an explicit instruction, there may have been jury confusion as to “the crime” necessary to support the aggravating factor.
Jury Instruction No. 4 states Scott “committed the crime for the purpose of receiving money or any other thing of monetary value.” The language of the instruction is taken from PIK Crim. 3d 56.00-C(3), which is entitled “Capital Murder-Death Sentence-Aggravating Circumstances.”
Because we have already concluded Scott is entitled to a new sentencing trial, we choose to dispose of this issue in summary fashion. The phrase “the crime” is inadvisable under the circumstances of this case and, under other circumstances, might very well be prejudicial. PIK Crim. 3d 56.00-C(3) should be revised to specifically designate the crime of capital murder. On remand, the trial court should conform its instruction to specify the charge of capital murder.
PROSECUTORIAL MISCONDUCT
Scott contends the State committed prosecutorial misconduct in several instances during closing argument. He argues the prosecutor asserted he had “no earthly right to ask for [mercy]”; asserted he showed “phantom remorse”; asserted his mental illness did not prevent him from committing the crimes; referred to the impact of the crimes on the Brittain family; misstated the law regarding the meaning of the aggravating factor “great risk of death to more than one person”; and referred to a fact not in evidence.
As we previously stated in analyzing the prosecutorial misconduct issue from the guilt phase, appellate review requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006) (citing State v. Tosh, 278 Kan. 83, Syl. ¶¶ 1, 2, 91 P.3d 1204 [2004]).
In the second step of the two-step analysis, the appellate court considers the following three factors: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have had litde weight in the minds of the jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met. Swinney, 280 Kan. at 780. Under K.S.A. 60-261, if substantial rights of the defendant have been prejudiced, the error is not harmless. Under Chapman, an error is not harmless beyond a reasonable doubt unless the error had little, if any, likelihood of having changed the result of the trial.
A. Argument of “No Earthly Right to Ask for Mercy”
During closing, the prosecutor made the following statements in response to Scott’s arguing for mercy: Scott argues these statements by the prosecutor demeaned the mitigating concept of mercy, in violation of the Eighth Amendment.
“Mercy. They’re asking that you have mercy on this killer. They’re asking you to exercise that act of grace which never entered the killer’s mind on September 13th, 1996. They’re asking you to spare him for no reason other than that.
“Let’s talk about another term that we’ve heard, though. Moral culpability. This is a term that’s in your instructions as well. And, when you are considering this plea for mercy, this plea that the State suggests he has no earthly right to ask for after his offense, consider moral culpability also.”
This court discussed prosecutorial misconduct in commenting on the concept of mercy in State v. Kleypas, where we stated:
“In a capital case, it is important for the jury to be able to evaluate whether a defendant is deserving of mercy As part of the same concept, however, it is clearly proper for a prosecutor to argue against the granting of mercy. We hold that it is proper for the prosecutor to argue that the defendant is not deserving of the jury's mercy because of the defendant’s actions, as long as the prosecutor does not improperly state the law by arguing to the jury that it is prohibited from granting mercy to the defendant because the defendant showed none to the victim.” 272 Kan. at 1110-11.
Despite Scott’s contention, the prosecutor’s comments in this case were clearly aimed at arguing Scott did not deserve mercy. At no time did the prosecutor argue the jury was prohibited from showing Scott mercy. Rather, the prosecutor explicitly told the jury that granting mercy would be an “act of grace.” Further, the prosecutor requested that when the jurors were considering Scott’s plea for mercy, they also consider moral culpability. As a result, these comments were not improper.
B. Argument of “Phantom Remorse”
During the penalty phase, Scott addressed the jury and made the following statements:
“I wanted to just, you know, tell everybody I was sorry for the stuff that happened, you know. I grew up mostly away from my family. I was in and out of boys’ homes. I know what it’s like. And now I had two sisters just like the young boy, and I know they’re all gonna grow up without their parents around, you know, they ain’t got the chance that I got to, you know, make amends with my family for the things that happened in my life. And, you know, I can’t — I can’t apologize enough to show how sorry I am for the things that happened. And I wish I could take it back. I can’t. All’s I can do is ask drat you guys, you know, see how true I am about my apology, you know. Don’t sentence me to life — I mean, sentence me to life and not death. That’s all I have to say.”
In closing, the prosecutor argued:
"These two aggravating factors, the destroyed family and the destruction of drat family for things increase the enormity of this man’s crime to a level where nothing outweighs it. Not age. Not pitiful background. Certainly not phantom remorse. Not even mercy.” (Emphasis added.)
Scott contends the use of the term “phantom remorse” was a comment on the prosecutor’s opinion of Scott’s credibility, and was improper.
In State v. Pabst, 268 Kan. 501, 506-07, 996 P.2d 321 (2000), we cited the ABA Standards of Criminal Justice and held that, in closing argument, prosecutors should not state their personal opinion as to the credibility of the defendant. In labeling Scott’s remorse as “phantom,” the prosecutor in this case did in fact state his personal opinion as to Scott’s credibility. Thus, this statement did constitute prosecutorial misconduct. On remand, this argument should not be permitted.
C. Argument Regarding Scott’s Mental Illness
The prosecutor argued:
“Several of the mitigators cite his mental illness and brain damage. Interestingly enough, remember something that Dr. Cunningham said. His congenital brain damage is consistent with other murderers. He tested like a murderer. Is it surprising then that he has these problems? Could anyone who commits two premeditated murders for the purpose of obtaining things be mentally normal? Does depression or reactive attachment disorder, any of those things or their treatability reduce Scott’s moral culpability for this crime?
“His blame, his mental state did not prevent him from committing these two premeditated murders, did not keep him from placing those kids in danger, did not keep him from lying to the Sheriff about it.
“Besides, remember Dr. Cunningham. He described Gavin as a poor historian. Remember how well this poor historian described the layout of the Brittain residence for Holtz and Oliver, how he drew it out in excruciating detail. This is a man who is in command of all of his senses on September 13, 1996. He was in the Brittain home long enough to commit the layout to memory. He may have mental problems, but they weigh little compared to the weight of the aggravating circumstances.” (Emphasis added.)
Scott argues these statements were improper because they sought to convince the jury not to give weight to mitigating evidence because it did not excuse the crimes.
In State v. Kleypas, we held:
“[I]t is improper for a prosecutor to argue that certain circumstances should not be considered as mitigating circumstances because they do not excuse or justify the crime. ‘Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, even though they do not justify or excuse the offense.’ [Citations omitted.] A prosecutor who argues that mitigating circumstances must excuse or justify the crime improperly states the law.” 272 Kan. at 1103.
In the case at hand, however, the prosecutor did not argue Scott’s mental illness should not be considered because it did not excuse or justify the crime. Read in context, the argument was that Scott’s mental illness was not as severe as he made it out to be, because it did not “prevent” him from committing the crimes. Granted, there is some suggestion in the statement that Scott’s mental illness did not excuse his culpability. However, taken in context, these statements did not contravene the “considerable latitude” prosecutors are allowed in commenting on the evidence. See Kleypas, 272 Kan. at 1084.
D. Argument Regarding Impact of the Crimes on the Brittain Family
Scott next argues the prosecutor improperly commented at several junctures on the impact of the crime on the Brittain family. He contends these comments were improper because victim impact evidence is not relevant to any aggravating factor in Kansas.
An examination of the record reveals several times during the prosecutor’s closing argument when the prosecutor mentioned the effect of the murders on the Brittain family. On several occasions, the prosecutor argued Scott “destroyed the Brittain family.” The prosecutor also argued Scott’s relationships with his family did not bear much weight compared to “the relationships that can never be ever again thanks to his deliberate actions.” In commenting on Scott’s culpability, the prosecutor stated:
“[Scott] is not only responsible for his physical acts, breaking in through the girls’ bedroom, confronting them, threatening them, murdering the Brittains in their sleep, he is morally culpable for those acts and their results. The shattered lives he left behind.”
Under the United States Constitution, victim impact evidence is admissible in a capital case. Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). In Payne, the United States Supreme Court stated: “[A] State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.” 501 U.S. at 825. The Court also stated: “[A] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” 501 U.S. at 827.
The issue is whether such evidence is admissible under Kansas law. K.S.A. 21-4624(c) provides: “[Ejvidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto and any mitigating circumstances.” We conclude the plain language of21-4625 permits consideration of victim impact evidence if such evidence is relevant to the question of sentence, i.e., an aggravating or mitigating factor.
In this case, most of the prosecutor’s remarks were not based on traditional victim impact evidence. Instead, his remarks were aimed at describing the act involved more than on the actual impact of the crime on the survivors. The only statement perhaps related to the impact of the crime on the victims is the statement that evidence of Scott’s relationship to the family should be given little weight compared to the relationships his crime severed. We hold the prosecutor’s statements were relevant to the question of sentence and therefore not improper.
E. Misstating the Meaning of an Aggravating Factor
Scott next contends the prosecutor committed misconduct by misstating the meaning of an aggravating factor. In discussing the aggravating factors alleged by the State and, more specifically, the defendant’s creating a great risk of death to more than one person, the prosecutor made the following statement:
“The first is: That the defendant knowingly or purposely killed or created a great risk of death to more than one person.
“That is sterile legal terminology which says that that man destroyed the Brittain family. There is no doubt that this aggravating circumstance exists. He shot Doug and Beth to death in their sleep. Killed more than one person. That is enough.”
A prosecutor is charged with the duty not to misstate the law. With the above statements, however, the prosecutor in this case was arguing the great risk of death came about when Scott “destroyed the Brittain family” by shooting both Douglas and Elizabeth Brittain. Within the context of the evidence presented at trial, the instructions given by the trial court, and the complete closing arguments of the parties, we do not conclude the prosecutor’s statements fell outside the considerable latitude allowed in arguing the evidence.
F. Referring to Facts Not in Evidence
Scott’s final contention with regard to prosecutorial misconduct is that the prosecutor referred to a fact not in evidence; specifically, the statement of the prosecutor that Scott and Wakefield “took a .22 caliber pump rifle with them” to the Brittain house. Scott contends there was no evidence they took the rifle to the house as opposed to finding it in the house. However, while it was unclear from the evidence where the pump rifle came from, the rifle did have Wakefield’s fingerprint on it. Further, Scott, in his confession, stated his accomplice was armed with a “cut-down gun.” We believe it was a fair inference from the evidence that Wakefield brought the .22 rifle at issue with him. As a result, this statement did not constitute misconduct.
USE OF SPECIAL VERDICT FORM
Scott contends the trial court erred in admitting into evidence in the penalty phase the special verdict form from the guilt phase stating Scott individually and personally killed or intended to kill Douglas and Elizabeth Brittain. According to Scott, this finding should have been a part of the penalty phase, and by taking it away from the jury, the district court denied him the right to have the jury make the finding.
Use of the special verdict form arose because there was some question as to whether it was Scott or Wakefield who actually fired the fatal shots. The trial court, after conferring with counsel, gave a special verdict form to the jury asking it to make a determination as to whether Scott “individually and personally killed or intended to kill” each of the victims. The jury made the finding Scott killed or intended to kill both Douglas and Elizabeth Brittain.
In Enmund v. Florida, 458 U.S. 782, 797, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), the United States Supreme Court held the Eighth Amendment forbade the imposition of the death penalty on “one . . . who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Subsequently, in Tison v. Arizona, 481 U.S. 137, 158, 95 L. Ed. 2d 127, 107 S. Ct. 1676 (1987), the Supreme Court clarified its holding in Enrnund, stating that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enrnund culpability requirement” and impose the death penalty. In short, these cases prohibit imposition of the death penalty unless the defendant is a major participant in the crime of felony murder.
The Kansas Death Penalty Act does not permit the imposition of the death penalty for the crime of felony murder. The crime of capital murder always requires an intentional and premeditated killing. See K.S.A. 21-3439. Even if a capital murder is predicated on a theoiy of aiding and abetting, we require that the defendant must intentionally aid or abet with the intent to promote or assist in the commission of the crime. State v. Hunter, 241 Kan. 629, 639, 740 P.2d 559 (1987). Consequently, even if Scott’s conviction of capital murder was based on a theory of aiding and abetting, the trial court’s instructions of law in the guilty phase were sufficient and the special verdict was not necessary.
There does remain the issue as to whether introduction of the special verdict form at the penalty phase was error. The issue is unusual, as ordinarily there would be the same jurors for both phases of the trial. Here, there was the unusual circumstance of a completely different jury in the sentencing trial.
Even if we assume error, it is difficult to see under the circumstances of this case how there was any prejudice to Scott. A sen tencing jury is necessarily going to be informed the defendant has been convicted of capital murder for the intentional and premeditated killing of more than one person as part of the same act or transaction. Here, the evidence was overwhelming that Scott was the actual shooter. Introducing the special verdict form at most emphasized the obvious at the conclusion of the guilt phase of the trial—Scott “individually and personally killed” Douglas Brittain and Elizabeth Brittain.
We conclude the special verdict form was not necessary, and it is disapproved for use in future capital proceedings. On remand, however, the sentencing jury will be informed Scott has been found guilty of capital murder for the intentional and premeditated killing of the Brittains.
PENALTY PHASE CONCLUSION
Scott’s sentence for the premeditated first-degree murder of Douglas Brittain is vacated. His sentence of death for the capital murder of Elizabeth Brittain is also vacated, and the matter is remanded with instructions to hold a new capital sentencing hearing consistent with our other holdings.
Affirmed in part and reversed in part, with the sentence of death vacated and the case remanded to the district court for a new capital sentencing proceeding.
Nuss, J., not participating.
Knudson, S.J., assigned.
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In a letter dated August 20, 2008, to the Clerk of the Appellate Courts, respondent Neil A. Dean, of Topeka, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2007 Kan. Ct. R. Annot. 330).
At the time the respondent surrendered his license, there had been a finding by the Review Committee of the Kansas Board for Discipline of Attorneys that there was probable cause to believe that the respondent had violated the Kansas Rules of Professional Conduct in five separate complaints. The allegations in the complaints were that the respondent failed to act diligently, failed to communicate with clients, abandoned representation of clients, and misappropriated client funds.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Neil A. Dean be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Neil A. Dean from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337).
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The opinion of the court was delivered by
Johnson, J.:
Kim E. Crum appeals from his jury trial conviction for the first-degree premeditated murder of John Neal. Crum makes multiple claims of prosecutorial misconduct; complains about two exhibits; argues that he should not have been required' to proceed with an appointed attorney with whom he had a conflict; contends that violations of an in hmine order should mandate reversal; and asserts that cumulative error denied him a fair trial. Although Crum did not receive a perfect trial, we find that reversal of his convictions is not required.
In the early morning of January 1, 2005, Neal died of multiple blunt force and sharp force injuries. A number of people testified as to their respective recollection of the events surrounding the homicide. There were some inconsistencies in the various descriptions of the witnesses, especially as to the time of day that certain events occurred. However, Crum does not challenge the sufficiency of the evidence, so a full recitation of each witness’ testimony is unnecessary.
Tamara Fainter lived in a triplex with her teenaged son, Colby Carson, and a daughter. Her boyfriend, Crum, was a frequent overnight guest. For a few weeks prior to the murder, Fainter had occasionally permitted Neal, who was homeless, to sleep on her couch. Often, Neal would arrive at Fainter’s residence in an intoxicated condition which made him loud and talkative. If the other inhabitants were trying to sleep, they would admonish Neal to be quiet. Sometimes, Neal would take offense to the admonishments and leave the house for another friend’s house or to pass out in the yard or in Fainter’s car.
Fainter and Crum attended a New Year’s Eve party, returning home early in the morning of the murder. Fainter testified that she was drunk and passed out. Carson arrived home later from another party. Subsequently, Neal appeared and began “preaching” to Carson, who responded by yelling at Neal to be quiet. The ruckus awakened Fainter, albeit she remained in bed. Neal eventually left the house.
According to Fainter and Carson, Crum got dressed and went outside shortly after Neal’s departure. Later, the two heard yells or screams and went outside to investigate. Some time later, they observed Crum, ostensibly in possession of a piece of wood or handle. Carson said Crum went inside Fainter’s house, then exited to walk toward an abandoned house next door.
Fainter then took Carson to the home of a friend, Jaimie Brown, but Carson soon returned home. Brown and her mother, Tami Spann, eventually came to the Fainter residence, and Spann purportedly discovered Neal’s body in back of the adjacent abandoned building. Spann then returned inside the Fainter residence and confronted Crum, accusing him of the murder.
The police were called, but when they arrived, Crum hid in the attic for a time. A wooden-handled hammer was located under a tree some distance from the site of the murder. DNA from the hammer matched Neal’s DNA. Also, Neal’s DNA was contained in blood and matter found on Crum’s shoe. Crum told the police that he went to bed after the party and slept through the entire ruckus, and that his shoe was contaminated when he later went out to observe Neal’s body. At the police station, Crum asked an officer how long the sentence was on a murder case.
Ultimately, a jury convicted Crum of the first-degree premeditated murder of Neal, and Crum received a hard 50 life sentence.
PROSECUTORIAL MISCONDUCT
In his first two issues, Crum raises questions of prosecutorial misconduct, which triggers a two-step analysis: First, did the prosecutor exceed the bounds of permissible conduct. Second, if so, did the conduct constitute plain error; that is, did the statements or conduct prejudice the jury against the defendant and deny the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
“The second step requires three factors to be considered: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and over whelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met. [Citation omitted.]” Albright, 283 Kan. at 428.
Attack on Defense Counsel
Crum’s first challenge is to the prosecutor’s rebuttal comments relating to defense counsel’s closing argument. Defense counsel suggested to the juiy that the truth never changes, but that false stories will change with each telling because it is difficult to remember what one has said previously. Defense counsel then reviewed the inconsistencies in the testimony of Fainter, Carson, Brown, and Spann, and argued the incredible nature of some of the testimony, such as Spann confronting Crum about killing Neal, rather than calling the police. The defense concluded:
“There are inconsistencies that are huge. Now, you see the pictures of the body and you see the size of my client and you see the size of Colby [Carson]. Who could have beaten him to death and dragged the body around the back? That’s what you have to decide.”
The prosecutor began the rebuttal closing argument by stating:
“You know, defense counsel can sit here and he can ridicule these people as much as he wants, he can use his little voices and sky they said this, they said that, he can talk about them taking six steps and he can talk about them taking 10 steps. What he wants to do is he wants to belittle these people, he wants you to decide if I put myself in their shoes, which ladies and gentlemen, I’m not asking you to do, are they doing things that are stupid, are they being ridiculous. He’s berating them. Nobody would be stupid enough to go back to where a killer is and yell at him, nobody would be stupid enough to tty to keep the person they love from going to prison.
“Well, ladies and gentlemen, Tami Spann was on that stand and do you believe for a second that she wasn’t actually gonna go in there and confront him? You saw her, she was gonna do it. And what’s more, is that when he got on the stand he sat there and he said she did come in and yell at me. So is it that stupid for us to believe that they would act like that, when he said she did it? Is it necessary to belittle them and berate them for the ways their memories have changed?”
Crum argues that the prosecutor was attacking the defense counsel instead of addressing the inconsistencies in the witnesses’ statements, which were the core of the defense. He asserts that the prosecutor’s comments improperly shifted the juiy’s focus to a personal analysis of the defense counsel instead of an objective analysis of the evidence. In support, Crum cites to Florida cases where reversal was based on prosecutorial misconduct in closing argument, including attacks on the defense counsel. See, c.g., Adams v. State, 830 So. 2d 911, 915-16 (Fla. Dist. App. 2002); Lewis v. State, 780 So. 2d 125, 131 (Fla. Dist. App. 2001); Barnes v. State, 743 So. 2d 1105, 1108 (Fla. Dist. App. 1999). We find that the peculiar facts of those cases render them unpersuasive here.
Obviously, “[t]rials cannot be allowed to degenerate into name-calling contests.” State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461, rev. denied 263 Kan. 889 (1997) (prosecutor called both defendant and defense counsel liars). However, fair comment on trial tactics and the interpretation of evidence is allowed, so long as care is taken not to “inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses.” State v. Mosley, 25 Kan. App. 2d 519, 525, 965 P.2d 848, rev. denied 266 Kan. 1113 (1998). We perceive that the prosecutor’s statements were fair comment on the defense tactic of suggesting to the jury that the inconsistencies in the testimony of the State’s witnesses proved the testimony to be false. If the defense attempts to put the State’s witnesses on trial, the prosecutor can point that out to the jury.
Further, in addressing the defense argument that Spann’s stoiy was illogical and incredible, the prosecutor was certainly within the bounds of fair argument to remind the jury that defendant’s own testimony corroborated parts of Spann’s testimony. Thus, we find that the prosecutor’s comments were not outside the wide latitude permitted in discussing the evidence and did not constitute prosecutorial misconduct.
Cross-examination of Defendant
Next, Crum argues that the State improperly cross-examined him on the credibility of the State’s witnesses and on the existence of premeditation. With respect to witness credibility, Crum points to the following exchange:
“Q. You heard Colby [Carson] testify, saying that he himself came home at three or 4:00 a.m.; is that right?
“A. That’s correct.
“Q. Then you also heard that when he talked to officers he might have said two or 3:00 a.m., right?
“A. Yes, I heard that.
“Q. That’s not really a big deal, is it?
“A. To me, it’s not. Colby was never there as far as I know.
“Q. I mean, mixing up three or 4:00 a.m. or two or 3:00 a.m., really no big deal, right?
“A. That’s correct.
“Q. Doesn’t really affect this case at all, does it?
“A. It doesn’t affect me. I told ya I was asleep, I don’t know what time Colby came home.
“Q. But you yourself could, you know, easily say three or 4:00 a.m. to somebody and say two or 3:00 a.m. another time and it wouldn’t be that important, would it?
“A. Yeah, it would be important. I’m the one on trial here, not Colby.
“Q. So it’s important to you now in this case?
“A. That’s correct.”
Crum suggests that the questioning was designed to elicit his opinion that Colby Carson’s inconsistent testimony about the time of day did not affect the credibility of Carson’s other testimony. Crum admits there was no contemporaneous objection to the questions but points out that we have considered questions of prosecutorial misconduct even in the absence of an objection. See Alb-right, 283 Kan. at 428.
The State counters that the prosecutor was simply pointing out the trivial nature of the inconsistencies in time of day testimony, and that it was proper to do so on cross-examination. However, the State does not explain the relevance of the defendant’s opinion as to the triviality of the State’s witness’ inconsistent testimony. We perceive no purpose for the question, other than to bolster the credibility of that State’s witness, i.e., to facilitate an argument that the State’s witness is not lying notwithstanding the inconsistencies. We have plainly said that “[questions which compel a defendant or witness to comment on the credibility of another witness are improper” because weighing the credibility of witnesses “is the province of the jury.” State v. Manning, 270 Kan. 674, 698, 19 P.3d 84 (2001). Moreover, an even more basic rationale for prohibiting a question which invites the witness to comment on the truthfulness of another witness is that such a question is argumentative and seeks information beyond the witness’ competence. 270 Kan. at 698.
Accordingly, we find that the prosecutor’s questions about the weight that the defendant would give to Carson’s inconsistent testimony was improper. Nevertheless, in Manning, the court found that the impropriety of the prosecutor’s questions was tempered by tire defendant’s responses. 270 Kan. at 701. The same is true here. Crum’s responses ameliorated, if not negated, the prosecutor’s intended result, and we can declare beyond a reasonable doubt that the questioning did not change the result of the trial.
The other line of questioning challenged by Crum was the prosecutor’s attempt to elicit Crum’s opinion that the crime scene demonstrated that the killing was premeditated. During cross-examination, the prosecutor asked Crum: “Somebody meant to hit him with a hammer that many times, right?” Crum responded: “I don’t know what somebody meant to do.” The prosecutor then asked if someone hits a person with a hammer that many times, they mean to Idll him, to which Crum responded: “Apparently. That’s what they accomplished. That’s what it looks like.” Although Crum had declared that he took the witness stand because he was innocent, the prosecutor tried unsuccessfully to get Crum to admit that he killed Neal.
Later in Crum’s cross-examination, the following exchange occurred:
“Q. To beat someone on the side of the building and then drag them around back and continue to beat them, that means somebody really thought about it, doesn’t it?
“A. If that’s what took place, if he was beat on both places, yeah, and then drug somewhere, yeah, it had to been put some thought into it.
“Q. They put thought into it and they wanted to — they wanted him to die?
“A. I can’t answer what they wanted him to do. I can tell you what I didn’t do so — ”
Crum argues that the cross-examination, in addition to invading the province of the jury, was inflammatory, called for speculation and opinion evidence, and was prejudicial. The State cites to K.S.A. 60-456(a), which sets forth the provisions on admissibility of opinion testimony from lay witnesses.
“If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.” K.S.A. 60-456(a).
Crum had personally viewed Neal’s body behind the abandoned building, so arguably his opinion on what the crime scene disclosed about the killer’s thoughts and legal intent were based on his personal perceptions. Where the State’s reliance on K.S.A. 60-456(a) falters is that Crum’s opinion on premeditation had no bearing on the jury’s ability to understand Crum’s testimony and had no relevance to the juiy question of premeditation. What Crum might think was in the killer’s head was no more material to the case than what any given person on the street might opine. Again, the solicitation of Crum’s opinion on premeditation was argumentative, sought information beyond the witness’ competence, and invaded the province of the jury.
Again, however, the prejudicial effect of the questioning was tempered by Crum’s responses. Thus, the questioning alone would not require our reversal.
Closing Argument on Premeditation
What is of greater concern is how the prosecutor used the improperly elicited opinion testimony on premeditation in its closing argument to suggest that the State had been absolved of its duty to prove the critical element of premeditation. Specifically, the prosecutor argued:
“You don’t even get to second-degree murder, ladies and gentlemen, if you’ve determined that first-degree murder was proven with no reasonable doubt. If you have determined that Kim Crum committed first-degree murder with no reasonable doubt, you don’t even move to the second-degree murder charge. And I’m not going to discuss second-degree murder in detail, because look at it, it’s first-degree murder and you just take out one number, okay, you take out the premeditation part.
“Now, I can stand up and argue till I’m blue in the face, striking somebody once may be an accident, twice may be an accident, three times you meant it, four times you meant it, five times you meant it, six times you meant it, up until we get to 16 times, same thing with the six blows to the face and the other multiple times to the body.
“But I don’t really need to argue that to you, ladies and gentlemen, because Kim Crum took the stand and on the stand he said well, if somebody does that to somebody, they meant to kill ‘em. All right? That’s the defendant, that’s what he said. Kim Crum says somebody intended to kill John Neal. Wipe that element out.
“What next does the State have to prove? Premeditation. You have the definition. I can argue about how getting two different weapons means that you had to think about killing him. How about thinking about going and finding John Neal means that you had a plan to go kill him? How about beating him on the side of the building and dragging him around to the back and dien beating him more behind the building means that you meant to or you wanted to kill him? I could argue all of that.
“But I don’t have to because Kim Crum took die stand and Kim Crum said on the stand, well, and from all the questions I was asking him, sounds like somebody planned on killing him or wanted to kill him. When I talked about changing the lands of tools or weapons, the sharp force injury versus the blunt force injury, well, sounds like a plan. So I don’t need to argue that. It’s not disputed, it was premeditated.”
The State urges us to consider the entire argument in context and find that it was “fair argument based entirely on the evidence adduced at trial.” We disagree. Even if one could fairly characterize Crum’s testimony as presenting a properly admitted lay opinion that the crime scene evidence showed the killing was premeditated, the issue of premeditation was not undisputed. Thus, the State still had to prove premeditation with the evidence and the jury had to find beyond a reasonable doubt that, based upon the facts of the case, the killing was premeditated. The prosecutor’s statement that he need not argue why the facts established the element of premeditation because it was not in dispute exceeded the wide latitude afforded to prosecutors in discussing the evidence.
In the second step of the analysis, we would perceive the argument to be so fundamentally erroneous as to be gross and flagrant. Moreover, the combination of eliciting improper lay opinion testimony and then characterizing the somewhat equivocal responses as a stipulation to an element of the crime connotes ill will or such misunderstanding of basic legal principles as to be tantamount to ill will.
Nevertheless, without our assessing witness credibility, we would have to declare the evidence of guilt in this case to be overwhelming. Moreover, the prosecutor also included proper argument on how the facts supported premeditation, and we do not perceive the question of premeditation to have been a close call for the jury. The critical issue for the jury was the identity of the attacker. Therefore, we find that the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.
PHOTOGRAPH EXHIBIT 22
After opening statements and before the first witness, the State moved to admit a series of photographs, exhibits 1 through 22. The defense did not object, and the photographs were admitted. Exhibit 22 is a photograph of the top of a washing machine with its lid open, showing there is something inside and what appears to be blood on the machine.
The State did not display the photograph to any witness, and there was no testimony to explain the significance of the exhibit. Nevertheless, the photograph went with the jury when it retired to deliberate, along with all of the other properly admitted exhibits.
During deliberations, the jury asked questions about the photograph, seeking an explanation as to its significance. The trial court responded:
“THE COURT: . . . The first question is as follows: State’s Exhibit No. 22, explain the significance. Is this blood on the washing machine? If so, was it tested? Was this machine at [Fainter’s home]? Whose clothes are in the machine? The answer to all those questions is that I can’t answer those, it was never testified to.
“There were a number of photographs that were preadmitted, this wasn’t published during the trial, it wasn’t testified to, it’s for the jury to determine what weight and credit this exhibit gets. The instruction number one says you can consider as evidence testimony of witnesses, any admission of the parties and any exhibits which are admitted, of which this is 22.
“I don’t know. I can’t give you any guidance. This is — the weight and credit is for you to determine, but it was not testified to. And quite frankly, to answer any of those questions without any testimony would be speculation.”
Crum states this issue as follows: “A photograph, exhibit 22, was mistakenly given to the juiy during its deliberations. The exhibit purported to show a washing machine with cloth[e]s in the water and possible blood on the machine. The trial court’s failure to properly respond to a jury question regarding the exhibit was reversible error.” The answers to the stated issue are straightforward and simple.
First, the trial court admitted exhibit 22 into evidence without defense objection. We are not faced with a scenario where defense counsel stipulated to foundation conditioned upon the State later establishing relevance. The photograph was admitted as evidence, and at no time did the defense move to strike the exhibit or to have it withdrawn. As the jury instructions set forth, the jury was permitted to consider as evidence any exhibits which were admitted. Therefore, exhibit 22, being admitted by the court, was properly given to the jury to consider as evidence during its deliberations.
Then, when the juiy questioned the significance of the exhibit, the district court answered in the only way that it could. The jury had been instructed that it was up to the jury to decide what weight and credit to assign the evidence, which would include an unexplained exhibit. Defense counsel did not object to the trial court’s response to the jury question, perhaps because the district court was absolutely legally and factually correct with its answer.
Crum’s overarching complaint is that the presence of the unexplained photograph permitted the jury to speculate that it supported an inference which was highly prejudicial to the defense. He asserts that the trial court should have, sua sponte, ordered the exhibit withdrawn and instructed the jury to disregard it. We decline the invitation to fashion such a legally unsupportable rule and find that the trial court did not err.
SUBSTITUTE COUNSEL
Crum contends that the trial court violated his Sixth Amendment right to counsel by requiring him to proceed to trial while represented by an appointed counsel with whom he had developed a conflict. Crum filed a pro se motion for a change of counsel which was dated June 13, 2005, but file-stamped July 18, 2005. The trial court considered the motion in pretrial proceedings on August 29, 2005.
Crum’s complaints focused on his public defender’s failure to spend more time with Crum and to keep Crum fully informed on the plan of defense. At the hearing, the district court explained that a great deal of work was required to prepare for trial which did not involve client consultations. Appointed counsel conceded that he had not spent a great deal of time meeting with Crum, principally because the facts of the case required that he spend his time elsewhere, such as reviewing reports and dealing with the investigator and witnesses. Nevertheless, appointed counsel declared that he was prepared to proceed to trial that day.
Shortly before the scheduled trial, Crum had attempted to retain private counsel, who apparently agreed to handle the case if the court would grant a continuance to permit the retained counsel to prepare for trial. According to Crum, one or more judges, other than the assigned trial judge, denied the retained attorney’s attempts to enter the case and obtain a continuance.
At the time of the hearing, Crum focused on the situation with his retained counsel rather than on obtaining substitute appointed counsel. The trial judge offered to permit retained counsel to participate in the trial, alongside the appointed counsel, and unsuccessfully tried to locate the retained counsel on Crum’s behalf. Thereafter, the trial proceeded with the original appointed counsel representing Crum.
On appeal, Crum complains that the delay in hearing his motion for new counsel was inexplicable; that the court should have inquired why appointed counsel did not take action on the pro se motion; that at the hearing the trial court should have given Crum the option to accept newly appointed counsel; that the court improperly threatened Crum that any new counsel would have to proceed to trial immediately; and that the trial court should have allowed Crum and defense counsel time to reconcile and overcome their communication problem.
We confess to some concern that the district court would delay for over a month in setting a hearing on a motion for new counsel, until the day of trial, and then declare that any new counsel would be required to proceed immediately to trial. Likewise, any off-the-record denials of retained counsel’s attempts to enter the case and obtain a continuance by judges other than the assigned trial judge strikes us as curious, at best. Nevertheless, we perceive that the assigned trial judge appropriately handled the last-minute request to substitute retained counsel and that the result on Crum’s attempt to get new appointed counsel would have been the same with an earlier hearing date.
The State argues the three-part test from State v. Saeger, 13 Kan. App. 2d 723, 724-26, 779 P.2d 37 (1989), should be used as a framework for determining whether the trial court abused its discretion in failing to discharge a court-appointed attorney. However, that test has been supplanted by a “justifiable dissatisfaction” test.
“A trial court’s refusal to appoint new trial counsel is reviewed using an abuse of discretion standard. Judicial discretion is abused when the district court’s action is arbitrary, fanciful, or unreasonable. The test for abuse of judicial discretion is whether any reasonable person would take the view adopted by the district court. State v. Jasper, 269 Kan. 649, 653, 8 P.3d 708 (2000).
“To warrant the appointment of new trial counsel, a defendant must show ‘justifiable dissatisfaction’ with his or her appointed counsel. ‘Justifiable dissatisfaction’ may be demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney. Jasper, 269 Kan. at 654.” State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006).
When the district court addressed Crum’s motion, it made inquiry of both Crum and his court-appointed attorney. See State v. Taylor, 266 Kan. 967, 979, 975 P.2d 1196 (1999) (citing Wood v. Georgia, 450 U.S. 261, 272, 67 L. Ed. 2d 220, 101 S. Ct. 1097 [1981]) (court has a duty to inquire when it becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony). The court elicited that the appointed counsel had expended time and energy in preparing for trial and was, in fact, ready to proceed. Crum’s unilateral problem stemmed from a dissatisfaction with the amount of time and attention the appointed counsel devoted directly to Crum. An attorney’s inability to shower as much personal attention upon a client as he or she would like does not necessarily rise to the level of a conflict of interest. See McGee, 280 Kan. at 897 (disagreement about the amount of time and attention defendant should receive does not rise to the level of a conflict of interest).
In short, we find that Crum failed to establish a justifiable dissatisfaction with appointed counsel such that a denial of the motion to substitute counsel constituted an abuse of discretion.
ADMISSION OF PHOTOGRAPH OF VICTIM
Crum complains about the admission of exhibit 41, which is a photograph of Neal’s body at the crime scene, showing his face and upper chest and one arm, bent to reveal a bagged hand. Crum argues the photograph was more prejudicial than probative. We disagree.
Generally, when reviewing a district court’s decision to admit photographs, an appellate court first determines whether the evidence is relevant, i.e., probative. State v. Sappington, 285 Kan. 176, 194, 169 P.3d 1107 (2007); State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). The trial court has broad discretion regarding the admission of demonstrative photographs. To determine whether such photographs should be admitted, a trial court must decide whether they are relevant and whether a proper foundation has been laid. State v. Kirby, 272 Kan. 1170, 1186, 39 P.3d 1 (2002). Even though a defendant concedes the cause of death, the prosecutor still has the burden to prove all the elements of the crime charged. Therefore, photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. State v. Hernandez, 284 Kan. 74, 102, 159 P.3d 950 (2007).
Crum principally argues that this particular photograph was cumulative to other admitted photographs and, therefore, was more prejudicial than probative. The district court had overruled the defense’s objection to the exhibit, finding that this particular photograph revealed Neal’s identity, in contrast to the autopsy photographs which depicted close-up views of the wounds. We have previously ruled that photographs may be admitted for purposes of identifying the victim. See State v. Nguyen, 281 Kan. 702, 728, 133 P.3d 1259 (2006) (not abuse of discretion to admit photograph to identify the victim); see also State v. Randol, 212 Kan. 461, 466, 513 P.2d 248 (1973) (quoting State v. Campbell, 210 Kan. 265, 275-76, 500 P.2d 21 [1972]) (“ ‘Photographs admitted for the purpose of identifying the victim and to portray the facts described by a pathologist witness concerning the autopsy performed on the body of the victim are relevant and admissible.’ ”).
We find that the photograph labeled exhibit 41 was relevant and not unduly prejudicial. The district court did not abuse its discretion in admitting the exhibit.
VIOLATIONS OF IN LIMINE ORDERS
Prior to trial, the district court granted Crum’s motions to sequester the witnesses and to preclude the State from presenting evidence of his past crimes. Crum contends that both orders were violated and that he should have a new trial.
The courts employ
“ ‘a two-part test to evaluate alleged violations of [an order] in limine: (1) Was there a violation of the order in limine and (2) if tire order in limine is violated, did the testimony substantially prejudice the defendant? The burden is on the defendant to show substantial prejudice. State v. Galloway, 268 Kan. 682, 692-93, 1 P.3d 844 (2000).’ ” State v. Gleason, 277 Kan. 624, 640, 88 P.3d 218 (2004) (quoting State v. Douglas, 274 Kan. 96, 109, 49 P.3d 446 [2002]).
The trial court is in the best position to decide if its order in limine was violated and determine die degree of prejudice a violation may have caused the defendant. State v. Whitesell, 270 Kan. 259, 281, 13 P.3d 887 (2000). The denial of a motion for mistrial is reviewed under an abuse of discretion standard. State v. Albright, 283 Kan. 418, 425, 153 P.3d 497 (2007).
Sequestration Order
Unbeknown to the parties, a witness, Jaimie Brown, was present in the courtroom prior to giving her own testimony. After learning of Brown’s presence, Crum moved for a mistrial, claiming that Brown had observed most of the testimony of the first witness, Officer Robinson, and the first portion of Fainter’s testimony. The district court observed that none of Officer Robinson’s testimony involved Brown and that the observed portion of Fainter’s testi mony did not describe any part of the event in which Brown was involved. Accordingly, the trial court denied the mistrial motion.
On appeal, Crum argues that Brown’s presence during Fainter’s testimony violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and his statutory rights under K.S.A. 22-2903. However, K.S.A. 22-2903 provides that sequestration is mandatory at prehminaiy hearings when requested by the defendant or the State. At trial, sequestration is not a right but is committed to the sound discretion of the trial court. State v. Francis, 282 Kan. 120, 142, 145 P.3d 48 (2006).
Moreover, the aim of sequestration is to “exercise a restraint on witnesses tailoring their testimony to that of earlier witnesses and aids in detecting testimony that is less than candid.” State v. Heath, 264 Kan. 557, 589, 957 P.2d 449 (1998) (citing Geders v. United States, 425 U.S. 80, 87, 47 L. Ed. 2d 592, 96 S. Ct. 1330 [1976]). Crum does not, and we perceive that he cannot, point to any prejudice that he suffered as a result of Brown’s brief violation of the sequestration order. Indeed, in closing argument, Crum’s attorney emphasized that the versions of events related by the various State’s witnesses were fraught with inconsistencies. The prevalence of inconsistencies would appear to be the antithesis of the “tailored” testimony which sequestration is designed to avoid. Thus, we find that the district court did not abuse its discretion in denying Crum’s motion for a mistrial.
In Limine Order
Crum claims that Spann violated the order in limine, which precluded any evidence of Crum’s prior criminal record, by stating that “this time he’ll go away for good.” However, the citations to the record provided by Crum do not reflect that Spann made the statement attributed to her. Moreover, our review of Spann’s entire testimony does not reveal that particular comment having been made. The burden is on Crum as the appellant, to furnish a record that affirmatively shows prejudicial error occurred in the trial court. Without such a record, an appellate court presumes the action of the trial court was proper and that no error occurred. See State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006).
Nevertheless, in addressing Crum’s motion for a new trial, in which he made the same claim as here, the district court ruled that Crum had made no contemporaneous objection to the testimony and that the comment did not prejudice Crum. Both those rulings were appropriate.
When a motion in limine is granted to preclude the introduction of certain evidence at trial, the party who obtained the favorable ruling must object to evidence introduced in violation of the order. The failure to object results in the issue not being preserved on appeal. State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003).
Alternatively, even if the proffered comment was actually made by the witness and even if Crum had preserved the issue for appeal, we would find that the jury would not necessarily have to infer from the comment that Crum had a prior record and that the district court would not abuse its discretion in refusing to grant a mistrial for that rather innocuous testimony.
CUMULATIVE ERROR
Finally, Crum contends that the cumulative effect of the errors was to deny him a fair trial and that the inconsistencies in the testimony of the State’s witnesses made the State’s case a weak one. Our oft-cited description of the cumulative error analysis is:
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. [Citation omitted.]’ ” State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007) (quoting State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 [2006]).
Obviously, Crum did not have a perfect trial. However, our touchstone is the fairness of the trial and whether the cumulative effect of the trial errors had any likelihood of changing the result. Here, given the quantity and quality of the evidence presented, we are confident that the result would have been the same even without the trial errors.
Affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to recover $160 for delay rentals on oil and gas leases which had been secured on land belonging to F. M. Williams and Jessie M. Williams. The land, two quarter sections, had been leased to the Texas Company and the Skelly Oil Company, and the rentals for the delay in operation of the leases were $80 on each quarter section, and the delay rentals for the ensuing year did not become due until May 29, 1931. The land had been owned by Sarah J. Van Meter and was sold by her without reservations to the Williamses, and the deed of transfer was filed for record on April 23, 1931.' The delay rental on both quarter sections was sent to the Hanston State Bank by one of the lessees, the Texas Company, on May 1, 1931, and was received by the bank on May 4, 1931, the bank having been designated in the leases as the depository for such payment. Lloyd Olson was the cashier of the bank and its managing officer, and he had been the original lessee of the lands, which lease he had subsequently assigned. On May 18, 1931, the bank held a note for a considerable amount against Mrs. Van Meter, and the cashier, Olson, placed the $160 to the credit of Mrs. Van Meter on that note and retained the money. Personally Mrs. Van Meter had nothing to do with the deposit and made no directions with reference to it. It was transmitted by the oil company to be paid to the owner of the land.
It appears that there is a publication in that section of the country called the Southwest Credit Association, a publication taken by the bank, and it appeared that the issue of May 12 contained a publication of the transfer of the land by warranty deed from Mrs. Van Meter to the Williamses. Then on May 18, as we have seen, Olson made an entry applying the delay rental to the note of Mrs. Van Meter. About two weeks later Williams applied to the oil company for the money and learned that it had been sent to the depository bank about the first of the month. He then went to the bank to get it and was told by the cashier that he had not been advised to deposit the money to anyone other than Mrs. Van Meter, and that she was owing the bank and he had taken and applied the money on that debt. When Williams requested payment from the bank, Olson replied: “I appreciate, Mr. Williams, that you should not be made the goat, that the money rightfully belongs to you,” but declined to pay it to him. He stated that he had not been advised to pay the money to anyone other than Mrs. Van Meter, and that as she was owing the bank he had taken and applied it on that debt.
The demand not being paid, action was brought and the verdict of the jury and the judgment of the court were in favor of plaintiffs. The bank appeals and complains, first, of the instructions, and second, the failure to set aside special findings of the jury and the refusal to grant its motion for a new trial.
The court gave the jury instructions, three and four of which are as follows:
“The burden is upon the plaintiff in this action to prove by a preponderance of the evidence that prior to the time the defendant applied the $160 on the indebtedness due to it from Sarah J. Van Meter, the defendant had knowledge of the conveyance of said land to the plaintiffs, or had notice or knowledge of such facts as would have caused an ordinarily prudent person to have made inquiry, and that the making of such inquiry would have resulted in knowledge of the conveyance of said land by Sarah J. Van Meter to the plaintiffs. If the plaintiffs have so proven, then you should return a verdict herein for the plaintiffs in the sum of $160, but if the plaintiffs have not so proven, or if the evidence offered by the defendant is sufficient to show that it did not have such notice or knowledge, then you should return a verdict herein for the defendant.
“Under the evidence in this case, the plaintiffs were the owners of the land in question at the time the delay rentals were applied to the indebtedness of Sarah J. Van Meter to the bank, and the bank is liable to the plaintiffs therefor-, in the event that the bank, prior to the time it applied such money to the indebtedness of Sarah J. Van Meter, had knowledge of the conveyance of the land to the plaintiffs, or notice of such facts as would have caused an ordinarily prudent person to make inquiry, which inquiry would have disclosed the fact that plaintiffs were the owners of the land.”
The contention of the defendant is that the instructions are indefinite and misleading, and that there is a difference in payments in property a-nd payments of money. The complaints of the instructions were not made when they were given and, in fact, not raised until this appeal was taken. No other or different instructions were requested by defendant. It was satisfied to go to the jury on the instructions given by the court without objection or offer of other instructions.
In Hamilton v. Railway Co., 95 Kan. 353, 148 Pac. 648, it was said:
“A judgment will not be reversed because of complaint that the court did not properly, correctly and fully • instruct the jury, where the instructions given correctly stated the law, and no request was made for other or additional instructions.” (Syl. ¶ 4.)
In Foley v. Crawford, 125 Kan. 252, 264 Pac. 59, it was said:
“From the abstract of the defendant it may reasonably be inferred that the instructions were in writing. The defendant had the right to see them before they were read to the jury, and could have seen them if a- request had been made for permission to do so. The defendant could then have stated to the court wherein modification was desired and could have requested other or additional instructions. What the defendant desired to have in the instructions should have been made known to the court either by a request for a modification of the instructions given or by submitting to the court special instructions with the request that they be given.” (p. 263.)
In Master Sales Company v. Sytsma, 114 Kan. 120, 217 Pac. 291, it was said:
“The instructions given were correct so far as they went, but they should have stated the rule for measuring the defendant’s damages; however, the plaintiff did not request any such instruction. If he wanted such an instruction given, he should have requested it. His failure to make such request renders the error committed by the court unavailable.” (p. 123.)
In Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419, where there was complaint of instructions given by the court, it was said:
“Although plaintiffs complain that instructions were incomplete and should have included some additional matter, they did not request or suggest any additions or modifications of those given. Plaintiffs stood by without making objections, and not asking for modifications or additions they allowed the court and defendant to understand that they were satisfied with the charge. If a party thinks an instruction is not as full as it might be he should in fairness to the court point out the lack and request the additional matter, and if he fails to do this he has no right to complain.” (p. 14.)
The instructions appear to be correct so far as they pertain to the issues on which the case was tried by the parties. The fáilure of the defendant to object to the instructions, as given, or to suggest modifications of them, bars him from complaining that additional instructions were not given, or of those given.
Defendant contends that the special findings on which the judgment was founded are not supported by sufficient evidence, and further that the question was raised by the motion for a new trial. In that motion it is stated as a ground for a new trial, “because of erroneous rulings or instructions of the court.” As we have seen, the instructions as to other features were not available to defendant, and as to other rulings the trial court was not informed as to the grounds relied upon. The motion should have definitely pointed out the rulings of which complaint was made, and if error was committed, to correct such errors and thus avoid the necessity of an appeal.
In Brick v. Fire Insurance Co., 117 Kan. 44, 230 Pac. 309, this question was considered, and it was said:
“The purpose of a motion for a new trial is to give the court an opportunity to reexamine rulings made in the course of the trial and to correct any errors in the proceedings, so that parties may avoid the trouble and expense of having them corrected on appeal. How could the court reexamine and correct a ruling unless the party called attention to the particular one to which objection was made and the statement of the grounds of his objection?” (p. 45.)
In the syllabus it was said:
“Errors of the trial court occurring during the trial and which constitute grounds for a new trial, to be reviewable on appeal, must have been brought to the attention of the trial court on a motion for a new trial, and if such errors are not specifically pointed out in the motion or upon the presentation of the motion, and no opportunity is given to the court to reconsider and correct such errors, they will as a general rule be regarded as waived.” (¶ 2.)
As to the special findings and their support in the evidence, it may be said that the knowledge of the defendant was first placed before the jury as direct and actual knowledge that the Williamses were the owners of the land and entitled to the money paid on delay rentals for the coming year, and further, that if that was not found, that it had knowledge of such facts as would have caused an ordinarily prudent person to make such inquiries as would have resulted in such knowledge of the conveyance of the land to Williams. There was evidence that the bank was a member of the Southwest Credit Association. The cashier remembered receiving a report from'that source that told of the conveyance from Van Meter to Williams, but said he did not remember when he seemed it, but he named a date later than May 18, when the money was applied to the debt of Van Meter. When the cashier was asked by Williams for the money, he said he had noticed in the record reports that Williams had become the owner of the land, but he had not been advised to deposit it to the account of anyone but Van Meter. He knew of the leases and had been an owner of them, but had assigned them to others and therefore knew of their provisions that the future delay rentals were to be paid to the owner of the land.
As to conversations with Williams, he said he did not remember the dates of the same, but did not learn of his ownership of the land until he demanded the payment of the money. In answer to the question if he knew then that Williams was the owner of the land, he replied, “I don’t believe I did.” On cross-examination, when he was asked if when he received the remittance of the money from the Texas Company about May 4, 1931, he knew it was for this land which had since been transferred to Williams, he said that he did. He testified further as follows:
“Q. When Mr. Williams testified you had known of this from the report, or record, .that is a mistake, is it? A. I don’t remember having such a conversation with him.
“Q. But you would not be sure you did not have such a conversation? A. No, I don’t remember that part of the conversation.”
Speaking of the reports in the Southwest Credit Association, dated May 10, 1931, he was asked if he had examined this exhibit, and he answered “yes, sir,” and if he had noticed that that report contained a mention of a warranty deed from Mrs. Sarah J. Yan Meter to F. M. Williams, covering the land, describing the two tracts, his answer was “yes, sir.”
In most of the answers he sought to convey the idea that he had not learned of the conveyance until after the application of the money. On the testimony three special questions were asked and answered by the jury. They are as follows:
“1. Did the Hanston State Bank know on May 18, 1931, that plaintiffs Williams had a deed to land in question? A. No.
“3. If you do not find that defendant bank knew that the plaintiffs Williams had a deed to the land on May 18, 1931, then state whether or not it had knowledge of any facts which would put an ordinarily prudent person upon inquiry to ascertain whether or not plaintiffs were entitled to the oil and gas money. A. Yes.
“4. If your answer to question 3 is in the affirmative, state what fact or facts were brought to the knowledge of defendant, and by whom, that should cause it to investigate to determine the ownership of such money. A. Report of the Southwest Credit Association.”
It is obvious from the answer to question one that the bank did not have direct and positive knowledge that Williams had a deed to the land, but by the answers to three and four that it had knowledge of facts which put it upon inquiry to ascertain who was entitled to the money, and that that information was sufficient to cause it to investigate to determine the ownership of the money. The proof seems to be sufficient to sustain the findings.
Olson, the managing officer of the bank, was the original lessee in the leases and was therefore familiar with the fact that the owner was entitled to the future delay rentals. The land had been conveyed to Williams prior to April 23, 1931, the rentals were not due until May 29, 1931, and the checks mailed by the Texas Company were sent on May 1, 1931, and received on May 4, 1931, nearly a month before they were due.
Mrs. Van Meter did not deposit the money to her credit, but it was placed to her account by the bank when the remittance slips accompanying them informed the bank that they were for rentals on the particular lands in question. The bank was a subscriber or member of the Southwest Credit Association which issued a publication on May 10 which contained the description of the sale from Van Meter to Williams. The only dispute in the important facts is as to when Olson read these reports. When interviewed by Williams he stated that he had noticed by the record reports that Williams had become the owner of the land, and not that he did not know of that fact in time, but his excuse was that he had not been advised to deposit this money to any other account than that of Mrs. Van Meter. He testified that he did not remember making the statement attributed to him by Williams; but did not deny making it. The jury decided that he made it and also that it was a fact. Knowing that, he appropriated the money to the debt owed by Mrs. Van Meter to the bank. In an annotation to 13 A. L. R. 334, it is said:
• “Where the bank, although having no actual notice of the character of funds deposited with it, has knowledge of circumstances such as are regarded as sufficient to necessitate inquiry upon its part, the general rule is that the bank cannot, as against the true owner, set off such funds against the individual indebtedness of the depositor to the bank.” (Citing many cases.)
A. E. Watson, to whom an undivided one-half interest was conveyed by Williams and wife on April 11, 1931, was a party to the action, and has participated in the trial and in the appeal.
Our conclusion is that the testimony is sufficient to support findings three and four, and that without authority the bank appropriated and placed the money of Williams, the owner, to the payment of Mrs. Van Meter’s indebtedness to the bank.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
These are appeals arising from allowance of claims against 'estates of decedents.
Appeals in separate cases have been presented together. In the probate court each of the plaintiffs filed claims against the estates of Anders Hedin and Anna Hedin, where allowances were made, and both of the claimants and the executor of the Anders Hedin estate and the administrator of the Anna Hedin estate appealed to the district court. In that court the two claims against the Anders Hedin estate were tried together, and from a judgment in favor of the claimants the executor appeals. As the same evidence tended to prove each claim against each estate, and as similar claims and pleadings were filed, they seem to have been treated together up to the beginning of the trial in the district court.
So far as the appeal in the Anna Hedin estate is concerned, it appears from the abstract that the claims against her estate are- still pending and undetermined in the district court. The only appeal-able order made with reference to her estate was the overruling of a demurrer on February 17, 1933. The notice of appeal by the administrator was not filed with the clerk of the trial court until August 18, 1933, which, under R. S. 60-3306 and 60-3309, was too late. This court is without jurisdiction to entertain the appeal, and it is dismissed.
So far as the appeal in the Anders Hedin estate is concerned, the appellant urges four propositions:
• 1. Whether or not the action is to specifically perform a contract or is to establish a claim for services.
2. Whether the probate court had jurisdiction.
3. If the probate court had no jurisdiction, did the district court have?
4. Does the evidence sustain the verdict?
Omitting caption and signature, the claim filed by Emma Clareen was as follows:
“You are hereby notified that I have a claim against the estate of the said deceased, Anders Hedin, consisting of labor and services rendered by me to the said Anders Hedin and to his wife, Anna Hedin, during their lifetime, and during a period of over thirty (30) years last past. Which services and labor was performed continuously during the said years without any interruption, and that the said services and labor thus rendered by me to Anders Hedin and Anna Hedin, his wife, was by virtue of an oral contract between the said Anders Hedin and Anna Hedin, his wife, and myself, whereby they did each of them separately and together and collectively agree with me that if I would give them during the remainder of their lifetime my love and affection and to the best of my ability comfort them in their declining years and would do as near as possible what a child would do for a parent and assist in their ordinary cares and household affairs and render assistance in the days of sickness and generally to give them such comfort as I could during the remainder of their lifetime that they would leave to my sister and myself their entire estate, and did state that their estate would not be less than three thousand dollars (S3,000) to each.
“That during these years I have performed all of the services demanded of me in every respect, and at the time that the said Anders Hedin made his last will and testament, a copy of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof. He does name my sister, Anna Johnson, and myself as the residuary beneficiaries under his last will and testament, but does provide to give over fifty per cent. (50%) of his estate to other parties and institutions, and that I do claim that the estate of Anders Hedin is lawfully indebted to me in the entire sum of the estate, which, according to the agreement should not consist of less than three thousand dollars ($3,000), according to the said agreement made and entered into between the said Anders Hedin and myself, and for which claim I pray a judgment for the sum of three thousand dollars ($3,000), and that I am a claimant against the said estate for said amount of money, and have had, and done all things herein set forth, and that all of these things are within my knowledge, and that I have given all credit to the said estate that the said estate is entitled to, and that there is no set-offs of any kind from me to the said estate.”
At the same time she filed a “petition” alleging substantially the same facts as to the contract and performance thereof, and—
“That your petitioner is entitled to all of said estate that is left after the payment of the debts and funeral expenses and the expenses of the last sickness of the said Anders Hedin and Anna Hedin, his wife, and that the said claims of the petitioner consists of all the personal property and real estate belonging to said estate.”
Anna Johnson filed a similar claim and petition. After hearing in the probate court the claims were allowed in the sum of $3,000, and the claimants and the executor each appealed to the district court, in which court the executor, by motions to elect and to strike, and by demurrer, raised the question whether the action was one to recover an indebtedness, or was one to specifically enforce a contract. Rulings adverse to the executor’s contentions were made, following which he filed an answer denying the allegations of plaintiff’s petition and alleging that if deceased was indebted for services as alleged in the petition, such indebtedness was fully satisfied in the lifetime of the deceased. Thereafter, trial by jury was had. A verdict was returned for the plaintiffs, the amount of their joint recovery “to be the estate, less taxes, debts and expenses.” The jury answered fourteen special questions submitted, which will be mentioned later. In support of his contention that this was not proof of a claim against the estate, but actually was a suit to specifically perform a contract and subject only to the jurisdiction of the district court, appellant does not refer us to any Kansas case in point, nor does our search reveal anywhere the precise point has been decided.
It may be conceded that certain language in the demands and petitions can be so construed that it may be said claimants were seeking specific performance, while other statements just as clearly show they were seeking recovery for the value of services rendered by virtue of a contract which fixed that value. While the trial court might well have sustained the motion to require claimants to elect, and thus have clarified the matter, it cannot be overlooked that when the claimants filed their demands in the probate court, they were invoking only such jurisdiction as that court possessed and which did not include jurisdiction over an action in specific performance. The matter was tried to a jury which, to say the least, would only be called in an equitable action in an advisory capacity, and there is nothing in the record to indicate it was so called here. As we view the matter, the issue was tried on a basis more consistent with allowance of a claim against the estate than for specific performance of a contract with the decedent. For a complete answer, however, it is necessary to refer to the jurisdiction of the probate court. Our statute (R. S. 22-701 et seq.) as amended gives the probate court a wide jurisdiction in allowing demands against estates of deceased persons, the procedure therefor being fixed, and the only provision for proof of claim otherwise than in the probate court is by action in the district court, as provided by R. S. 1933 Supp. 22-707, although under this last section it has been held that it is not error for a district court to decline to entertain such claim. (See State v. Zimmerman, 121 Kan. 346, 246 Pac. 516.) In Correll v. Vance, 127 Kan. 840, 275 Pac. 174, plaintiff invoked the jurisdiction of the district court. The petition alleged that prior to her marriage to him her husband had made a will, which had been admitted to probate; that she had never elected to take less than a widow’s share. She prayed that the will be set aside; that she be allowed her widow’s allowance; that the property remaining be used to pay debts and expenses of administration, the balance to be divided between herself and her husband’s children by a previous marriage. The court quoted from Kothman v. Markson, 34 Kan. 542, syl. ¶ 3, 9 Pac. 218, viz.:
“While the district court has jurisdiction over certain matters relating to the estates of deceased persons, it is an equitable jurisdiction, and in its exercise the court will be governed by the rules of equity, and the plaintiff, therefore, cannot successfully invoke the jurisdiction of the district court to enforce the payment of a claim against the estate of an intestate, where the statute has provided the relief sought may be obtained in an ordinary legal proceeding in the probate court, and no special circumstances requiring the aid of equity are disclosed.” (p. 842.)
And cited many cases in support, and held that—
“Where a party has a plain and adequate remedy by an ordinary legal proceeding in a probate court, touching a matter over which the probate court is already exercising jurisdiction, with ample power to grant the relief prayed, he may not invoke the jurisdiction of the district court to accomplish the same purpose.” (Syl.)
It would thus appear that it was claimants’ duty to proceed to have their claims allowed in the probate court, unless there is something inherent in the claim that deprives that court of jurisdiction. At least so far as the demand is concerned, it shows a contract for services to be rendered and a price to be paid therefor, although by reason of contradictory statements there might be a question as to the amount to be paid, a matter not of present concern. Certainly it does not conclusively appear that claimants sought specific performance, and from the issues as framed by the demand, the petition of plaintiff and the answer of defendant, it appears it was not so considered and tried. There have been many cases decided by this court having to do with similar claims against estates of deceased persons, many of which are referred to in Woltz v. Trust Co., 135 Kan. 253, 259, 9 P. 2d 665; earlier cases being referred to in Webster v. Camp, 107 Kan. 235, 237, 191 Pac. 284. Many of the cases referred to were actions to specifically enforce contracts, others-do not make clear how they originated. In the following cases claims were filed in the probate corut: Ayres v. Hull, 5 Kan. 419; Ensey, Ex’r, v. Hines, 30 Kan. 704, 2 Pac. 861; Story v. McCormick, 70 Kan. 323, 78 Pac. 819; Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748; Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Dubbs v. Haworth, 102 Kan. 603, 171 Pac. 624; Logston v. Needham, 138 Kan. 439, 26 P. 2d 443.
In Heery v. Reed, supra, it appears the measure of compensation was to be the property decendent left.
Although relief was denied in some of the cases last referred to, in none of them does it appear to have been because of invoking the jurisdiction of the wrong court. It is concluded that unless the claim shows on its face that equitable considerations enter into its allowance 'or the title to real estate is involved, the proper forum is the probate court, and that its jurisdiction was properly invoked here.
It is not necessary to discuss the proposition that the district court had no greater power on appeal than the probate court had. It having been decided that the claims were properly filed in the probate court, which had jurisdiction to hear them, there is no doubt about the power of the district court to hear them on appeal.
The last contention is that the evidence is not sufficient to support the verdict. There was no testimony offered by the executor disputing in any manner the proof offered by the claimants, as all he offered was the record in the probate court of the Anders Hedin estate. The inventory showed the estate consisted entirely of personal property valued at $13,139.60. Claims totaling $842 had been allowed. The will gave special legacies totaling $5,275 to. other persons and the residue to the claimants. Mrs. Hedin had never made an election as widow, and under the statute (R. S. 22-246) she took under the law. (And see Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074.) The jury answered special questions as follows:
“(1) Did Anders Hedin in his lifetime orally make an agreement with the claimants, Anna Johnson and Emma Clareen, or either of them, on his own behalf whereby he agreed with said Anna Johnson and Emma Clareen or either of them that if they would give to him and his wife, Anna Hedin, during the remainder of their lifetime their love and affection, and to the best of their ability comfort them in their declining years, and would do as near as possible what a child would do for a parent and assist in their ordinary cares and household affairs and render assistance in the days of sickness and generally to give them such comfort as they could during the remainder of their lifetime that he would leave to the said Anna Johnson and her sister, Emma Clareen, his entire estate? A. Yes. #
“(2) If you answer question No. 1 ‘Yes,’ then did Anders Hedin make any other agreement with the said Anna Johnson and Emma Clareen or either of them for any compensation for services rendered or to be rendered except as above stated. A. Yes.
“(3) If you answer question No. 2 ‘Yes,’ then state what such agreement was and the compensation to be paid thereon. A. Anders Hedin made an agreement with Emma Clareen, to take Anna Hedin and care for her the balance of her life for a consideration of $8,500.
“(4) If you answer question No. 3 by setting out such agreement and the compensation to be paid thereon, then has such compensation been paid? A. Yes.
“(5) Was Anders Hedin at the time of his death indebted in any manner to the claimant Anna Johnson or Emma Clareen or either of them? A. Yes.
“(6) If you answer question No. 5 ‘Yes,’ then state fully what was the nature of such indebtedness and the amount thereof. A. For care and services rendered to Anders Hedin and his wife, Anna Hedin, as set forth in question No. 1. Amount of indebtedness, the entire estate left.
“(7) Did Anders Hedin in his lifetime pay to Emma Clareen any amount for the purpose of caring for Anna Hedin? A. Yes.
“(8) If you answer question No. 7 ‘Yes,’ then state the amount of such payment. A. 88,500.
“(9) Did Anna Johnson and Emma Clareen render service and care for the wife of the said Anders Hedin for many years until the death of the wife of the said Anders Hedin? -A. Yes.
“(10) Did Anna Johnson and Emma Clareen render service to and care for the said Anders Hedin for many years until he went to the home prior to hia death? A. Yes.
“(11) Did the said Anders Hedin go to the home and pay his expenses at his own suggestion and for the best interests and care of himself and wife? A. Yes.
“(12) Does the evidence show that Anna Johnson was ever paid anything for the services she rendered to Anders Hedin and his wife'? A. No.
“(13) When did Emma Clareen first perform services for Anders Hedin and his wife under an agreement or understanding that she should be paid therefor? A. About the year 1903.
“(14) When did Anna Johnson first perform service for Anders Hedin and his wife, under an agreement that she should be compensated therefor? A. About the year 1903.”
Were these answers supported by evidence, and was it sufficient to support the general verdict in favor of claimants? It was shown that Mr. and Mrs. Hedin lived on a farm near Lindsborg. They had no children, and claimants, who were nieces of Mrs. Hedin and whom the Hedins referred to as “the girls,” lived near the Hedin farm, and that from as early as June, 1903, until the Hedins moved to Lindsborg in 1919, the claimants or one of them spent a great deal of time at the Hedin farm where they did all sorts of work, not only around the house, but in the field, it not being deemed necessary to make a detailed statement thereof. In 1919 the Hedins moved to Lindsborg to a house they then owned, and from then until about July, 1923, there is no particular showing of what was done. Mrs. Hedin was a large woman, and in July, 1923, she fell and injured herself. She had another fall in September, 1923, and was confined to her bed thereafter, until she was moved to the home of Mrs. Clareen. During that time the claimants, or one of them, looked after the house, did the-work and took care of Mrs. Hedin. In 1928 she was moved to the Clareen home, where she was bedfast, her condition becoming increasingly worse. She was unable to turn over in bed, her legs were stiff, her mind became affected, she couldn’t feed herself, lost control of her kidneys and bowels, and during all this time she was taken care of entirely by the claimants or one of them. She died in May, 1931, at the age of ninety-one years. At the time Mrs. Hedin was taken to the Clareen home, Mr. Hedin quit his residence and went to live at Bethany Home, a home for old folks in Lindsborg, paying to the home the sum of $1,500. At the same time he paid to Mrs. Clareen the sum of $8,500 to pay for the future care and maintenance of Mrs. Hedin. After Mr. Hedin went to the home he would go to the Clareen home every day he could walk, to visit his wife. Frequently he got his meals there, and would be bathed and cleaned up by claimants. Members of the family would take him riding. He died five days before his wife at the age of eighty-eight. There was much other testimony concerning services rendered. The question remains as to whether the services were performed under a contract they were to be paid for.
The claimants being incompetent to testify concerning the contract, it was necessary that it be shown by other witnesses. Mrs. Nyberg testified that in June, 1903, at the Hedin home, in the presence of Mrs. Hedin and the claimants, Mr. Hedin said claimants were going to get everything they had left when they died, to take care of them, and asked witness if she heard, and that the girls said they would do so; that Mr. Hedin said:
“Girls, I can’t repay you for what you are doing, but if you take care of us and help us we want to give you all- we have got afterwards.”
And Mrs. Hedin said: “Yes, I want them to have everything we have got.” She also testified to another occasion when the Hedins lived in Lindsborg, Mrs. Hedin said she wanted Emma and Anna to have what they had because they didn’t want Rosanders (relatives of Mrs. Hedin) to have anything, to which Mr. Hedin said “Yes.” Mrs. LeBlanc, a foster daughter of Mrs. Clareen, testified that while Mr. Hedin was living at the old folks’ home, she heard a conversation between Mr. Hedin and her mother and aunt in which his case was discussed and in which he asked if they would be willing to care for him like they had been doing and he would see that “they were settled $3,000 apiece for their work.” Emil Jacobson, who had known all the parties for forty years, testified as to claimants’ work and that he heard Mrs. Hedin say, in Mr. Hedin's presence, something about paying them and Mrs. Hedin said:
"Oh, they will have it when I am dead; they will get it all when I am dead.”
Fred Olson worked for the Hedins in 1900, and was frequently at their place. He testified as to claimants’ services, and as follows:
“Q. Did Mr. Hedin make any statement to you in regard to any agreement he had with these girls? A. Yes, sir.
“Q. What was it? A. Not with the girls; no, sir. He stated what he was going to do; he said, ‘Those that take care of us in our old age is going to have ours.’
“Q. Did Mrs. Hedin ever make any statements to you in regard to the Rosanders in the presence of Mr. Hedin? A. Yes, sir; there is where the trouble came in. She was raving over that, ‘I was there for nine years, and I never got a thing for what I done. I didn’t get as much as a pair of shoes. But they aren’t going to have anything after me.’ That is when Mr. Hedin spoke up, ‘Ma, those that take care of us in our old age is going to have what we got,’ or ‘our inheritance,’ I don’t know. It was all Swede talk.”
Mrs. Albertina Christian, a neighbor of the Hedins in Lindsborg, after testifying as to services rendered, said she had conversations with them on several occasions regarding the claimants, and Mrs. Hedin said:
“And she would stop and then she would say ‘Well, the girls’ — she always called them the ‘girls’ — she said they had been faithful, rain or shine, she said ‘they are faithful, and those are our girls, Anna .and Emma, and they are the ones that if they will take care of us and look after us, they shall have all we got.”
And Mrs. Hedin said:
“The girls were our girls; they were our faithful servants.”
As to the $8,500 payment made, there is not very much testimony, but it appears that about the time Mr. Hedin went to the old folks’ home he fold Mrs. Clareen about taking Mrs. Hedin into her home and said, “I am wore out.” “I can’t take care of her and clean her up and change the bed, and change her clothes and give her her bath,” and said to Mrs. Clareen: “I will give you $8,000 if you will take ma from now on until her death.”
It was shortly after that Mrs. Hedin was moved into the Clareen home. Claimants admitted Mrs. Clareen was paid $8,500.
It would unduly extend this opinion, already quite lengthy, to refer to the many cases of this character where sufficiency of proof has been considered. One of the leading cases is Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748, wherein it was said:
“The rendition of the services by. the plaintiff is not denied. That the mother intended to pay liberally therefor is clearly shown. The conclusion that the plaintiff at all times expected to be paid therefor is fully justified by the evidence. That there was an express contract between the mother and daughter is a fair deduction from the testimony. That the plaintiff was kind and careful of her mother’s comfort during her illness is shown by the repeated statement of the mother that ‘Ina is a good, good girl.’ The fact that payment was to come after the mother’s death, if the service continued to that time, and that an arrangement for this purpose was to be made when the mother went to Wellington, suggests that it was intended that payment would be provided for by the provisions of a will. ...
“It is not essential that a formal offer and acceptance, in writing or otherwise, be shown. In the absence of more direct evidence the fact may be established by circumstances. An express contract exists whenever there is a mutual meeting of the minds upon any contractual proposition. The essential contractual proposition in this case is: Were the services in question to be paid for? What was the mutual understanding of these parties upon this subject? This was a proper question for a jury, and that tribunal has answered that the parties intended that the services should be paid for.” (p. 671.)
And so here. A review of the testimony, as outlined above, shows the contract rather directly, but with the circumstantial evidence also considered, there is no doubt that the jury had ample ground for making the answers it did. The fact that the Hedin home was broken up and that Mr. Hedin went to the old folks’ home, and the fact that he made a payment of $8,500 for the future care of his wife did’not abrogate the original contract. The force and effect of these facts were doubtless argued to the jury. In the absence of some showing that the claimants accepted this payment for services previously rendered, and the only proof is that future services were contemplated, it cannot be said the original contract was satisfied.
Some argument is made as to the effect of the failure of the widow to make an election. The law did not prevent Mr. and Mrs. Hedin from making contracts and incurring obligations which might be enforced after their deaths. (Webster v. Camp, 107 Kan. 235, 191 Pac. 284.) The fact that the allowance of the claim against the estate of Mr. Hedin might exhaust his estate does not militate against the allowance of the claim.
We have examined the complaint made of instructions to the jury, and find it is without merit. The complaint with reference to overruling of appellant’s demurrer comes too late. The dates are the same as those in the Anna Hedin estate.
The judgment of the trial court allowing the claims against the estate of Anders Hedin is affirmed.
Burch, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
This was a proceeding under the statute to fasten parental responsibility on defendant for the maintenance and education of an illegitimate child born to Lucy Gresham, an unmarried girl twenty-two years old.
To the state’s information defendant pleaded not guilty. The cause was tried before a jury. It was shown that the prosecutrix and defendant had resided in Cheney and had attended high school there. When they were about twenty years old they began to indulge in sexual relations together. Later they attended different schools in Wichita, and the prosecutrix began to keep company to some extent with other boys, particularly Farrell Springer, William Kilgore and Clyde Seydell. The child was begotten during the early part of 1932, and it was part of the defense that these persons were frequently with her during that period under circumstances which gave them equal opportunities to have carnal knowledge of her with that enjoyed by defendant. The prosecutrix swore that she never had sexual intercourse with anybody except defendant. She did, however, have a difficult time on cross-examination in attempting to explain the contents of a letter she wrote to defendant under date of March 8, 1932, in which she assured him she was not enciente and that she had almost entirely quit sexual indulgence.
Defendant called Springer, Kilgore and Seydell as witnesses. The record reads:
“Q. You may state your name. A. Farrell Springer.
“Q. Do you know Lucy Gresham? A. Yes, sir.
“Q. Did you know her during January, February and March of 1932? A. Yes, sir.
“Q. Did you ever have any dates with her? A. Several.
“Q. Did you ever have intercourse with her?
“Thb Court: Wait a minute. It is the court’s duty to warn you, Mr Springer, that anything you may say can be used against you. A. Yes, sir.
“The Court: Or, if you want to waive your constitutional right, you may proceed with the testimony.
Prosecuting Attorney: “Tell him what his constitutional rights are.”
“The Court: Your constitutional rights are that you cannot be compelled to give testimony against yourself or that might incriminate you. A. I refuse to testify then.”
Similar incidents occurred in the examination of witnesses Kilgore and Seydell.
The mother of defendant was called as a witness and testified that the prosecutrix had a bad reputation around Cheney. On cross-examination she engaged in a verbal fencing duel with the prosecuting attorney. The trial court admonished her repeatedly to confine her remarks to answering questions. The record, in part, reads:
“Q. Now you say her reputation in the community where she lives is bad. A. I said it was.
“Q. Now then give me the names of the people that say her reputation is bad. A. I said they were the people of Cheney.
“Q. Who are they?
“A. Well, they are their neighbors and people in the town of Cheney.
“The Court: Do you know their names? A. I answered it.
“The Court: Mrs. Wright, you are fined $25, and you will have to pay it now.
[Counsel for Defendant] : “The defendant objects to the statement of the court and the county attorney and the fining of this witness because it is uncalled for and prejudicial, and asks that this jury be discharged and this defendant in this case be dismissed.
“The Court: The motion is overruled. The defendant will take charge of the lady. We will have a few minutes recess.”
After the recess the court said to the jury:
“The little incident that took place a while ago will not be considered by you as any evidence of the truth or falsity of the charges in the information; you will not consider that in arriving at your verdict in any manner whatsoever.”
The jury returned a verdict that defendant was the father of the child. This was followed by a hearing before the court to determine the amount defendant should be adjudged to pay towards its maintenance and education. This was eventually fixed at $280 in cash and $240 per annum, payable monthly until November 14, 1950, at which time the child, if then living, will be eighteen years old.
Judgment was entered accordingly and defendant was required to give bond in the sum of $2,000 to insure obedience to the judgment with the alternative of imprisonment in the county jail until such security be given, with the proviso that his incarceration in no event should exceed the term of one year.
Defendant appeals, assigning various errors, which will be noted in the order of their presentation. Preliminary thereto his counsel invite this court to discuss the nature of a bastardy case — whether it is civil or criminal; but this subject has been so often treated by this and other courts that it would be a work of supererogation to undertake it anew. (In re Bolman, 131 Kan. 593, 596, 598, 382 Pac 790; 7 C. J. 966, 967; 3 R. C. L. 750, 751.)
Error is assigned on the limitation placed upon the cross-examination of the prosecutrix where she was asked:
“Did you leave there [her Wichita boarding house] because you were told to leave as you were having too many boys there to see you?”
The prosecuting attorney’s objection to this question was sustained on the ground that it was not proper cross-examination. Mayhap this objection was not good; but the error, if any, was harmless, because antecedent thereto the record reads:
“Q. What was the cause of your leaving there?
(Objection overruled.)
“A. Because the woman told me she was going to California.”
The next error urged pertains to a ruling of the court which prevented defendant from showing that his father was worth about $75,000, the object of such testimony being to show a possible motive on the part of prosecutrix for fastening the paternity of her child on this defendant. The court also sustained an objection to a question which was intended to elicit testimony that the father of the prosecutrix had demanded of defendant’s father the sum of $3,500, presumably in settlement of his daughter’s claim for the support and education of her child. However, this excluded evidence, whose competency is not altogether clear and whose immateriality is rather obvious, was not brought into the record in conformity with the code when the motion for a new trial gave defendant that opportunity, so reversible error does not appear. (Civ. Code, § 307, R. S. 60-3004; Blankenship v. School District, 136 Kan. 313, 315, 15 P. 2d 438.)
Defendant’s next complaint arises out of the incident where his mother was fined for contempt of court because of her conduct on the witness stand. Regrettable as such incidents are, it would never do to hold that the refractory conduct of a ■ witness should be ignored by the court because the enforcement of discipline might possibly prejudice the cause on trial before the jury. Indeed, if such prejudice should be thus invoked, who could say whether it operated to the detriment of the one whose cause the refractory witness sought to uphold? In the absence of a clear showing of prejudice (which does not appear in this case) the proper method of dealing with such incidents must necessarily and largely be left to the sound discretion of the trial court. (State v. Marshall, 95 Kan. 628, 148 Pac. 675.) In In re Hanson, 129 Kan. 597, 283 Pac. 659, it was said:
“Any person in court — attorney, litigant, witness or bystander — whose refractory conduct tends to disturb the decorum requisite for the due administration of justice is guilty of direct contempt of court and may be fined or jailed therefor.” (p. 600.)
Defendant’s next complaint is based on the fact that in the examination of the three witnesses, Springer, Kilgore and Seydell, where the defendant apparently hoped to elicit the fact that each of them had had sexual relations with the prosecutrix about the time the child was begotten, the trial court of its own motion rescued them from the embarrassment of testifying on that subject. This court is neither disposed to approve the trial court’s intrusive ruling on this incident, nor to condemn it as prejudicially erroneous. We have held that in a bastardy proceeding to determine the paternity of an illegitimate child, evidence may properly be received that near the probable date of conception the relatrix associated with a young man other than the defendant under circumstances which offered as much opportunity and as much likelihood of improper conduct with him as with the defendant. (State, ex rel., v. Creager, 97 Kan. 334, 155 Pac. 29. See, also, State v. Gereke, on rehearing, 74 Kan. 200, 87 Pac. 759; and 7 C. J. 990.) One fair criticism of the trial court’s ruling would be that the witnesses were thereby led to infer that if they should give an affirmative answer they would be giving testimony which might furnish the basis of a criminal prosecution against themselves. That, however, would not necessarily follow. The girl was twenty-two years old and unmarried. The young men were also single, apparently. There was no reason to assume that if they had had sexual relations with her, it had occurred under such circumstances as those denounced under R. S. 21-908 or any other provision of the crimes act. Be that as it may, these three young men were defendant’s witnesses. It was their direct testimony which was excluded; what they would have testified to was never brought into the record; consequently no error can be predicated on its exclusion. (State v. Ball, 110 Kan. 428, 432, 433, 204 Pac. 701; State, ex rel., v. Lyons, 107 Kan. 312, 313, 101 Pac. 281.)
Defendant’s next grievance pertains to the failure of the trial court to instruct the jury that they should consider the association of the prosecuting witness with other men at and near the time her child was begotten. Defendant candidly admits that he has no particular fault with the instructions which the court did give, but argues that they should have been supplemented with one covering this defensive feature of the evidence. But we do not find that such an instruction was asked, so prejudicial error cannot be predicated on its omission. (Hamilton v. Railway Co., 95 Kan. 353, 357, 148 Pac. 648; State v. Harris, 126 Kan. 710, 712, 271 Pac. 316; Skaer v. American Nat’l Bank, 126 Kan. 538, 268 Pac. 801.)
Other omissions from the court’s instructions complained of were these:
The court gave no instruction to the effect that the defendant’s failure to testify in his own behalf should not be considered by the jury against him, and that the jury should disregard the prosecuting attorney’s comments thereon. But such instructions are only pertinent in criminal prosecutions, and would have been out of place in a mere bastardy proceeding. In 7 C. J. 998 it is said:
“It has been held to be competent for the attorney of the prosecutrix to comment, in argument, on defendant’s failure to testify, but this has been denied.”
While the authority just cited concedes that there are two sides to the rule, in this state, even in criminal cases, the rule forbidding evidential significance or argumentative comment to be based on the fact that defendant refrains from taking the witness stand is not likely to survive another session of our legislature. (3 J. K. B. 14, 15, 20, 46.)
Another contention of defendant is that the verdict was contrary to the evidence and against the weight of the evidence. The first of these points cannot be sustained. The testimony of the prosecutrix was direct and positive that she had carnal relations with defendant at and near the time the child (a normal one) must have been begotten. That evidence standing alone would be sufficient. (State, ex rel., v. Lyons, supra; 7 C. J. 994, 995; 3 R. C. L. 762, 763.) A strong corroborating circumstance was supplied by defendant by the use he made of the letter written by the prosecutrix to him in March, 1932. It is impossible that any woman would write such a letter to any man unless all bars of private decorum had been completely removed between them. Anent the point urged touching the weight of the evidence, that matter is not amenable to appellate review except in cases where the determinative evidence adduced at the trial was documentary or otherwise of such a character that its proper probative weight can be as accurately appraised in this court as by the local triers of fact. (Harrison v. Lyon, 126 Kan. 705, 271 Pac. 395; Martin v. Shell Petroleum Corp., 133 Kan. 124, 127, 299 Pac. 261.)
Finally, it is urged that the judgment is excessive — $280 in cash and twenty dollars per month until the child attains the age of eighteen years. This judgment will aggregate a lot of money, but this child must be housed, clothed, fed and educated, and since the trial court and jury have determined that defendant is responsible for it, he is the man to foot these necessary expenditures as far as his means and capacity to earn money will permit. It cannot be positively declared by this court that the provision made for this child by this judgment is excessive, although we are inclined to believe that tens of thousands of children bom in lawful wedlock are being reared in average Kansas homes for less money. ,
A painstaking study of this record and of the briefs of counsel do not reveal any prejudicial error which would permit this judgment to be disturbed, and it is therefore affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment making a division of property in a divorce action.
In a prior appeal (Mann v. Mann, 136 Kan. 331, 15 P. 2d 478) the judgment of the lower court was reversed because of abuse of discretion in making a property division, and the cause was remanded. Thereafter plaintiff filed an amendment to her petition making radical changes in her allegations as to the properties owned by either or both parties and claiming that certain real estate was her separate property. The judge of the trial court who tried the first action disqualified himself and the matter was tried by a judge pro tem. who, after hearing voluminous testimony, found against the contentions of the plaintiff as to said real estate being the separate property of appellant, and in a division of property awarded to her the real estate and certain personal property, and to the defendant certain personal property. From that judgment plaintiff appeals to this court, assigning as error that the court did not award her her separate property and abused its discretion in its award to her, etc.
It appears that one of the tracts of real estate awarded to plaintiff was improved with a duplex dwelling; the upper apartment was occupied by the defendant and he was in possession of the real estate at all times mentioned. Subsequent to the appeal having been perfected and on May 24, 1934, appellant’s counsel, who represented her in the lower court and here, being not available, appellant retained other counsel and brought an action to recover rents due from the tenant of the lower apartment of the above-mentioned duplex and to recover possession thereof. As soon as regular counsel discovered what had been done, they caused that action to be dismissed. Appellee has filed a motion to dismiss the appeal, urging that by bringing the above action appellant accepted the judgment rendered and can no longer maintain her appeal. Appellant argues that what she did was not inconsistent with her appeal. We cannot agree.
It is not disputed that defendant was in possession of the particular real estate, receiving the benefits thereof, at the time of trial of the action and thereafter. Appellant claimed the real estate as her separate property and the trial court found against her, but in making an award to her did give her the particular tract. She was not satisfied, and appealed. Either she was entitled to the real estate by virtue of the court’s- judgment or she was not entitled to it at all, and when she brought the action to recover rents and possession she had to base her claim of ownership on that judgment. We concede that appellant did not intend to prejudice her appeal, but as was said in Bank v. Bracey, 112 Kan. 677, 212 Pac. 675:
“In no case in which an appeal has been dismissed was it the intention of the party recognizing validity of the judgment to prejudice his appeal, and in several instances the intention not to prejudice the appeal was expressly declared.” (p. 679.)
In that case appellant recognized the finality of the judgment by paying the costs awarded against it, and pleaded ignorance of the consequences of its act. Previous decisions of this court are discussed in the opinion to which reference is made. See, also, the more recent case of Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750, where, in an action consisting of several items, it was held that the appellant could not accept the amount allowed in his favor and per- feet an appeal as to the remainder notwithstanding he expressly reserved in writing his right to proceed with the appeal.
The fact that appellant claimed in the amendment to her petition that the particular real estate was her separate property did not make her action in bringing suit for rents and possession consistent with the judgment rendered; on the contrary, it was inconsistent. She accepted in part the judgment in her favor and is bound thereby. Her appeal is dismissed.
Defendant has a cross-appeal, which will be noticed briefly. He complains that the court erred in charging him with moneys received during the pendency of the action, but expresses a willingness that under certain circumstances, not necessary to detail, his appeal may be dismissed. We have examined the record respecting the division of the property, and without specification of items or the testimony pertaining thereto, it does not appear-that the court abused its discretion. In disposing of the matter, the lower court gave plaintiff judgment against defendant for $562.57 to cover certain taxes on real estate awarded to plaintiff, and made the judgment a lien on the property awarded defendant, and decreed that defendant pay plaintiff attorney’s fees totaling $1,000 and the costs of the action, and that said sums for attorney’s fees and costs and any balance due upon the judgment for attorney’s fees rendered in the supreme court be a lien upon the property awarded to defendant, and provided that if defendant should not pay said liens within one year from December 15, 1933, an order of sale should issue. By reason of this appeal that time has almost expired, and the defendant could not safely comply therewith, and it is proper that such time be extended for a further period of six months or to June 15,1935.
The judgment of the lower court is modified by extending the time to June 15, 1935, in which defendant shall pay the liens adjudged against the property awarded him before an order of sale issue, and the cause is remanded for further proceedings consistent herewith.
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The opinion of the court was delivered by
Dawson, J.:
In this proceeding the state invokes the original jurisdiction of this court in quo warranto, challenging the authority of Kansas City to enter into a contract with a trustee to be approved by the national government whereby the city lets to the Federal Administrator of Public Works a part of its undeveloped municipal wharf for $10 per annum and in turn leases from such trustee the same property at a stipulated annual rental of “not less than $25,000 per annum” for an indefinite number of years, such rental to begin on the completion of certain improvements to be constructed on the wharf property from the proceeds of a bond issue of $1,354,000 and a prospective government grant of $482,000.
The state charges that the contract and the city ordinances pertaining thereto are illegal, and that the principal statute relied on for the city’s assumption of the challenged powers is unconstitutional.
The city and its governing officials answer at length, admitting all the material allegations of the state’s petition; but they join issue on its conclusions of law, and seek to justify the contract and the exercise of' the challenged powers on the ground that they are authorized by various statutes and particularly chapter 43 of the Special Session Laws of 1933. (R. S. 1933 Supp. 13-1238 et seq.)
The tract of'land involved in this action was dedicated by the founders of Kansas City in 1857 as a public wharf. It comprises some hundred acres of unimproved land adjacent to the Missouri river north of its confluence with the Kaw. For a more detailed description see Kansas City v. Wyandotte County, 117 Kan. 141, 230 Pac. 79. In that case it was held that the city had authority to lease the property to a private corporation for the consideration of its being improved, provided the uses to which the lessee proposed to put it should not be inconsistent with its potential use as a public wharf. That decision was rendered in 1924, and the legislature supplemented it in chapter 115 of the Laws of 1929 (R. S. 1933 Supp. 12-672, 12-673). (The present lawsuit warrants an inference that the enterprising project contemplated in that case has not materialized.)
At the special session of the legislature of 1933 the statute with which we are now chiefly concerned was enacted. The title of chapter 43 reads:
“An act to authorize cities having a population of 115,000 or over to issue and sell its revenue bonds to pay the cost of improving, constructing, reconstructing or repairing public levees, docks, wharves, river terminals, grain elevator terminal docks, and such storage, railroad and all other facilities which will make the publicly owned levee of such city convenient and accessible for use in connection with water transportation on the navigable river or rivers adjoining such public levees, and prescribing the recitals to be incorporated in such revenue bonds.”
The broad powers conferred in the text of the act are well summarized in the title, and we take space here to quote only section 2:
“Revenue bonds, as the term is used in this act, are defined to be bonds issued by any such city in this state to be paid exclusively from the revenue produced by the property and facilities improved, constructed, reconstructed, repaired or otherwise improved by the use of the proceeds of said bonds. Such revenue bonds shall not be general obligations of the city, and shall not contain the recitals set forth in section 10-112, Revised Statute’s of Kansas for 1923, or any amendment thereof. Such revenue bonds shall, however, contain the following recitals, viz.: Such bonds shall recite the authority under which such revenue bonds are issued, and that they are issued in conformity with the provisions, restrictions and limitations thereof, and that such bonds and the interest thereon are to be paid from the money and revenue received from the fees charged and rental received for the use of the property and facilities improved, constructed, reconstructed, repaired or otherwise improved by the proceeds, in whole or in part, of such revenue bonds when issued and sold.” (Laws 1933, Special Session, ch. 43, § 2.)
Other statutes on which the city partly relies to justify the challenged powers, if pertinent to our inquiry, will be noted later in this opinion.
The challenged contract extends to some forty printed pages of the record, but its outstanding features may be thus summarized:
The object of the contract is to obtain a loan and grant of money from the federal government of $1,756,000 to improve the public wharf, construct a mooring dock, raise its elevation, construct new levees, install storm and sanitary sewers, and to construct a grain ■elevator, an office building, railway sidings and bridges over Jersey creek, whose outlet reaches the Missouri river through this property.
The city agrees to sell and the government agrees to buy bonds of the city in the sum of $1,354,000 bearing 4 per cent interest maturing serially for thirty years, to be issued under authority of ■chapter 43 of the Laws of 1933, Special Session. (R. S. 1933 Supp. 13-1238 et seq.) These bonds are to be special obligations of the city payable, in part, out of the income which, it is anticipated, will be forthcoming from the improved property; but in addition thereto the city binds itself to pay a further financial obligation which will require careful scrutiny as we proceed.
The city also agrees to enter into a trust agreement with the government, naming a trustee to be approved by the latter, who is to receive and account for all the anticipated income derivable from parties using the facilities of the wharf after the completion of the projected improvement, which revenues shall be devoted to the maintenance and insurance of risks incidental to the conduct of the wharf and to the payment of interest and principal of the “revenue” bond indebtedness. This feature of the contract and its incidents-are elaborately specified, and include methods of accounting, provision for sinking funds, security for funds and the like, but most of these are of no present importance. As an inducement to the city to make the contract a tentative promise of a government grant equal to 30 per cent (not exceeding $482,000) of the cost of the labor and materials used in the improvement is offered, conditioned upon complete compliance by the city with the manifold details of the forty-page contract.
Of vital present concern are the following features of the contract:
“Part One
“2. Amount and method of making loan.
“(g) Security: The bonds shall be special obligations of the borrower payable exclusively from the revenue (including the rental payments to be made-by the borrower under the lease provided for in paragraph 3 [b], part one hereof). . .
“(j) Recitals: The bonds shall recite that they were issued under the authority and provisions of chapter 43 of the Laws of Kansas (Special Session 1933), that they were issued in conformity with the provisions, restrictions,, and limitations thereof, that said bonds and the interest thereon are to be paid from the money and revenues received from the fees charged and rental’ collected for the use of the property and facilities improved, constructed, reconstructed, repaired or otherwise improved by the proceeds in whole or in part of such revenue bonds, and that said bonds are not general obligations of said borrower, but are to be paid exclusively from the revenues of the project as herein defined.
“3. Lease and sublease:
“(a) The borrower covenants and agrees that prior to the sale of any bonds-to the government it will, in consideration of the loan and of the grant, lease-parcel A to the trustee referred to in paragraph 4, part one, for a term which-shall commence not later than the day preceding the date of the first purchase of bonds by the government and which shall continue until the day following-the day on which all of the bonds and the interest thereon shall have been paid' or an amount sufficient to pay the same shall be held by the trustee, at a rental which shall not be in excess of $10 per annum. The lease shall be inform and substance satisfactory to the administrator.
“(b) The borrower covenants and agrees that subsequent to the execution of the lease provided for in subparagraph (a) of this paragraph, and prior to the sale of any bonds to the government, it will sublease parcel A from the trustee for a term which shall commence on the day following the first day- of the term of the lease provided for in the foregoing subparagraph (a) and which shall continue until the day upon which all of the bonds and the interest thereon shall have been paid or an amount sufficient to pay the same shall be held by the trustee, at a rental which shall be not less than $25,000 per annum, such rent to commence to accrue on the date of the completion of the improvements to parcel A. The sublease shall be in form and substance satisfactory to the administrator and shall provide, among other things, that the rental to be paid thereunder shall be paid monthly to the trustee to be placed by it in the receipts fund hereinafter defined and applied as other moneys in the receipts fund are to be applied.
“4. Trust agreement:
“H. The trust agreement shall provide that the trustee shall have the duty, power and authority to demand, receive and enforce the collection of the rental to be paid by the borrower under the sublease provided for in sub-paragraph (b) of paragraph 3, part one hereof, and generally to enforce the terms and conditions of such sublease by action, suit or proceeding or otherwise.
“K. Miscellaneous provisions. The trust agreement shall contain such other and further provisions as the administrator may require or permit. . . .
“5. Leases of portions of parcel B. The borrower shall satisfy the administrator that it has entered into, or it will enter into leases in form and substance satisfactory to the administrator of all or such portions of parcel B as the administrator may require, upon such terms and conditions and at such rentals as the administrator may approve, and shall also satisfy the administrator that such leases, including any lease or leases made to the board of public utilities of the city of Kansas City, Kan., are binding and legal obligations of the lessees in accordance with their respective terms.
“18. Conditions precedent to the government’s obligations: The govern-. ment shall be under no obligation to pay for any of the bonds or to make any grant:
“(a) ... If, in the judgment of the administrator, the financial condition of the borrower shall have changed unfavorably in a material degree from its condition as theretofore represented to the government, or the borrower shall have failed to balance its budget satisfactorily or shall have failed to take action reasonably designed to bring the ordinary current expenditures of the borrower within the prudently estimated revenues thereof; . . .
“Part Thebe
“8. Validation. . . . The bonower further covenants that it will procure and furnish to the government, as a condition precedent to the government’s obligations hereunder a letter from the governor of the state stating that if in the judgment of the administrator it may be advisable to enact legislation to empower the borrower to issue the bonds or to remedy any defects, illegalities or irregularities in the proceedings of the borrower relative to the issuance thereof or to validate the same, said governor will recommend and cooperate in the enactment of such legislation.” [Italics ours.]
The state’s attack on this contract opens with the contention that the statute which authorizes this large issue of revenue bonds (R. S. 1933 Supp. 13-1238 et seq.) is unconstitutional for the reason that it violates section 5 of article 12, which reads:
“Provision shall be made by general law for the organization of cities, towns and villages; and their power of taxation, assessment, borrowing money, contracting debts and loanirtg their credit, shall be so restricted as to prevent the abuse of such power.” (Kansas Const., art. 12, § 5.)
This section of the constitution has often been subjected to judicial exposition. (Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207, and citations.) In that case this court quoted with approval an excerpt from the early case of Hines et al. v. City of Leavenworth et al., 3 Kan. 186, where this constitutional provision was under consideration, thus:
“When a law is passed embracing any of the subjects mentioned in the fifth section, it is the duty of the court, when called upon, to determine whether it contains restrictions, and if it does contain them the law must be held to be valid, notwithstanding the members of the court might doubt their sufficiency to prevent abuses. It is a subject wholly under the control of the political departments of the government. Whatever the legislature determines to be a sufficient restriction, if it be a restriction at all, must be final.” (p. 204.)
Whatever criticism this statute may be open to, it is not easy to discern where it falls short of constitutional requirements in respect to the requisite restrictions on municipal taxation. There can be no taxation under this statute. Section 4, in part, says:
“. . . Such city shall have no right or authority to levy taxes to pay the principal or interest of revenue bonds as defined herein and the provisions of section 10-113 of Revised Statutes of Kansas for 1923 shall not apply to this act.”
The amount of bonded debt which may be contracted under the statute is likewise limited. Section 7 reads:
“In no case in which revenue bonds are issued under and by virtue of this act shall any revenue bonds be issued for the improvement of any public levee and improvements thereon, in excess of the actual cost of same.”
To make assurance doubly sure that the proposed “revenue” bonds shall never become a charge against the general taxpayers of Kansas City, the statute prescribes that the bonds shall contain a recital to that effect (Sec. 2), and section 3 similarly provides:
“Sec. 3. Said revenue bonds shall not constitute in any case, a general obligation of such city, and said bonds, if and when issued, shall in no wise be taken into consideration or account as a limitation on the power of such city to issue bonds for any and all other purposes heretofore or hereafter authorized by law, with relation to a limitation upon the bonded indebtedness of said city.
“The governing body of any such city . . . may create a lien on the revenues to be obtained from such property and facilities and pledge the same to the payment of said revenue bonds and interest thereon.”
Counsel for the state cite the familiar case of Loan Association v. Topeka, 20 Wall. 655, 87 U. S. 655, as authority that a statute which authorizes a city to contract a debt implies a duty on the city to levy taxes to pay such debt, but Mr. Justice Miller’s opinion in that case concedes the possibility that a city may have other resources than the power of taxation, out of which the debt may be satisfied. It was there said:
“If these municipal corporations, which are in fact subdivisions of the state, and which for many reasons are vested with quasi legislative powers, have a fund or other property out of which they can pay the debts which they contract, without resort to taxation, it may be within the power of the legislature-of the state to authorize them to use it in aid of projects strictly private or personal, but which would, in a secondary manner, contribute to the public-good; . . .” (p. 659.)
It seems clear that where the parties debtor and creditor agree that only the anticipated income of the improved wharf and its incidents shall be looked to for the discharge of the debt, such agreement violates no rule of constitutional law.
The early case of State, ex rel., v. Osawkee Township, 14 Kan. 418, is also invoked as an authority against the statute. We think it does not control. Indeed the lapse of half a century and changing conceptions of what constitutes a public purpose have greatly narrowed the potency of the Osawkee case. See Beck v. Shawnee County, 105 Kan. 325, 182 Pac. 397; Treadwell v. Beebe, 107 Kan. 31, 38, 190 Pac. 768. In our time, when legislative, executive and judicial sanction are unreservedly given to projects for the improvement of streets, parks, drainage districts and the like, and to municipal ownership of waterworks, gas works and electric-power plants, it would be out of the question to hold that a city situated on a navigable stream could not be given a valid grant of power by legislative enactment to improve a tract of land dedicated as a site for a public wharf by the founders of that city three-quarters of a century ago. And whether such legislation is wise or otherwise is not a judicial question. In State v. Mercantile Co., 103 Kan. 733, 739, 176 Pac. 321, it was said:
“But legislation may be ill-advised, puerile, or faux pas and yet not be unconstitutional.”
The court holds that the statute contains no material infirmity-under the test of section 5 of article 12 of the state constitution.
What about the contract which defendants avow their intention to execute and perform under the claimed sanction of the statute just considered? That statuteauthorizes the city to embark in an ambitious venture to improve the municipal wharf, and to issue revenue bonds to raise the requisite funds to accomplish that purpose. But neither this statute nor any other to which our attention has been directed authorizes the city to let the property to a governmental functionary for $10 per annum and then sublease it from that functionary for an indefinite number of years and at a sizeable but indefinite sum of money which is not to be less than $25,000 per annum. Incorporated in defendants’ answer is an estimate of anticipated sources of income out of which the city hopes to pay off the proposed “revenue” bonded indebtedness in thirty years:
“(1) Commitments for rentals contingent on construction of project:
U. S. barge-line dock......................... $9,000.00
Board of Public Utilities of Kansas City, Kan., 5,200.00
Phillips Petroleum Company.................. 810.00
Elevator lessee for vacant ground............. 432.00
Union Pacific Railroad Company, track rental.. 2,937.60
$18,379.60
“(2) Income from trackage:
8.000 cars estimated ‘in’ grain to elevator at $1 per car................................. $8,000.00
6.000 cars estimated ‘out’ merchandise from barges at $1 per car....................... 6,000.00
$14,000.00
“(3) Rental of footage to various tenants on basis of 60 cents per sq. ft. at 6 per cent:
Future railroad right of way, 73,600'sq. ft...... $2,649.60
Kansas Retail Grocers’ Association, 50,000 sq. ft..................'................... 1,800.00
Midland Valley Casket Company, 48,000 sq. ft., 1,728.00
Milk Producers’ Association, 14,000 sq. ft...... 504.00
$6,681.60
“(4) Lease of grain elevator on 30-year lease— at $40,000.00 for 5 years
50.000. 00 for 10 years
55.000. 00 for 5 years
60.000. 00 for 10 years
Initial annual rental.................. $40,000.00
Total estimated rentals per annum for first five years.. $79,061.20”
This estimate of prospective income is followed by an elaborate schedule of amortization, designed to show that the income will increase from year to year with the result that in thirty years the entire indebtedness will be extinguished and a. balance accumulated •of $474,157.50. Although it is none too clear from the contract or defendants’ answer, it is fairly deducible from them, considered together, that the annual rental of “not less than $25,000” which the city is to pay will depend upon how nearly the anticipated annual income of $79,061.20 will be derived from the “commitments,” fees and rental charges to be collected from users of the wharf and its facilities.
As the contract did not specifically state the sources from which the city is to procure whatever sum of “not less than $25,000 per annum” it binds itself to pay as rent under its tenancy as sublessee of a portion of the improved wharf, the court, after this cause was submitted, invited counsel to present their views on this important feature. Amid the divergent responses of counsel it fairly appears that the annual sum of “not less than $25,000,” which the city obligates itself to pay, is in addition to the revenues or income derivable from the commitments, trackage, charges, rentals, etc., which the users of the Improved wharf are to pay, and which constitute the exclusive fund, under the statute, from which the revenue bonds of the city are to be liquidated. While the statute contemplates that the generality of Kansas City taxpayers shall not be out of pocket one penny on account of this authorized project and authorized bond issue, the contract binds the city to pay an annual sum of not less than $25,000 for an indefinite time — until the revenue bonds are paid, whenever that may happen. And the city can only find the money to pay this annual sum by drafts on its general fund. The general fund is chiefly raised by a general property tax, although counsel for the city assures us that there are odds and ends of this and that — license fees, fines, etc., which aggregate about $150,000— which go to augment the general fund; and by such refinement of argument they contend that the $25,000 per annum, or whatever it turns out to be, will not become a burden on the general body of taxpayers. We cannot assent to that. The taxpayers must contribute to the creation and maintenance of the general fund, and whatever is paid out from that fund must necessarily result in further contributions thereto by the generality of taxpayers. Now this annual sum of $25,000 per annum or more, which the city agrees to pay, is to be handed over through a prescribed system of bookkeeping into the hands of the trustee, and devoted, like the wharf revenues, to the payment of the proposed bonded indebtedness of $1,354.000. So whether this unusual scheme of letting the city’s wharf property for $10 per annum to a trustee and subleasing it from the trustee for the stipulated rental of “not less than $25,000 per annum” was designed as an evasion of the clear and positive mandate of the statute that the bonds shall be paid from wharf income and not otherwise, the contract, as drawn, has that effect.
If that conclusion were not sufficient to demolish this contract, there is a provision of the constitution which forbids the payment of so considerable a sum as $25,000 per annum without a specific statute authorizing a tax to raise the money. Section 5 (old § 4) of article 11 provides:
“No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only .such tax shall be applied.”'
In interpreting this provision this court has said that miscellaneous inconsequential expenses of a county or city may be paid out of the general fund without requiring the imposition of an authorized special tax; but where the amounts to be disbursed are so large as to materially affect the revenues of the municipality they must be raised by specific levies pursuant to specific statutory authority, and may not otherwise be lawfully paid out. (State, ex rel., v. Thomas County Comm’rs, 122 Kan. 850, 253 Pac. 406.) The rule applied in that case has been strengthened by the enactment of the budget law of 1933 (R. S. 1933 Supp. 79-2925 et seq.), and, in our opinion, the constitutional and statutory infirmities of the challenged contract are insurmountable.
The conclusion just reached dispenses with the necessity of dealing in detail with other matters urged by counsel in support of and against the contract. Of course the city could lease the wharf or a portion of it to a tenant, and, of course, if the city had no wharf it might acquire one by lease or otherwise; but the scheme to let the wharf the city already owns for a nominal sum and then take back a sublease thereof for a large but uncertain amount for an uncertain length of time has no statutory sanction. Counsel for the city expatiate at length on the economic advantages which may accrue-to the city and state if the proposed contract should pass the test of constitutional and statutory sanction. That, however, posits a field of disputation which a judicial tribunal is not authorized to-decide. And whether the city may authorize its light and power department to pay $5,200 per annum for the use of a portion of the-improved wharf is'a serious question, but one not now necessary to. be decided. The court has not overlooked those features of the contract which are susceptible of an interpretation that the governing body of Kansas City agrees to abdicate, in part, the discretionary powers vested in it for the welfare of the municipality, and agrees in advance to be guided and directed in vital matters of public concern by a representative of the national government. Such a policy, if given judicial countenance, will be a considerable departure from the policy of home rule, which has hitherto been regarded as a sine qua non of Kansas municipal government.
The court acknowledges the assistance it has received from counsel for all the litigants and by amid owrím in the solution of the legal questions here presented; and without misgiving we have reached the conclusion that the contract which defendants propose to make in behalf of Kansas City with the federal emergency administrator of public works is illegal; and judgment will therefore be entered against the city and its governing officials, ousting them from the exercise of the challenged powers and from executing or complying with the proposed contract.
Judgment is for plaintiff.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover moneys from the receiver of a failed state bank.
The plaintiff had done business with the State Bank of Keats since its organization and had known Grace E. Wood, who was assistant cashier prior to 1931 and thereafter cashier until the failure of the bank on January 29, 1931. She seems to have been the principal officer of the bank in meeting the public and in conducting the bank. On September 19, 1925, plaintiff had on deposit in the bank over $600. According to plaintiff’s testimony, Mrs. Wood asked him to loan the bank the money, and he did so, receiving as evidence of the loan a receipt on a printed form used by the bank on which the name of the bank appeared. It was signed “Grace E. Wood — ■ A. Cashier,” and in the lower left-hand corner the following notation appeared: “Note due 3-19-26 at 7%, $600.” On March 23, 1929, another loan of $1,500 was made under similar circumstances, the essential difference in the receipt being that it was signed by Grace E. Wood individually, and bore the following notation, “To be loaned at 7% $1,500.” A third loan of $700 was made March 24, 1930, the receipt being signed by Grace E. Wood individually, and bearing a notation, “To be loaned $700.” Plaintiff received no notes or evidences of debt other than the above receipts. After failure of the bank claims were filed, and, upon denial of liability, suit was instituted on December 2, 1932. Defendant’s answer was a specific denial of liability and a claim the first cause of action was barred by the statute of limitations. It appears that no interest had been paid upon the second and third claimed loans. As to the $600 loan plaintiff testified that each six months he went to the bank and was paid the interest by being credited with the amount' due, $21, in his bank book. On behalf of the defendant, it was shown that in 1919 the board of directors had authorized the cashier to borrow on the credit of the bank such amount as in his judgment should seem advisable, not exceeding $10,000; one of the directors testified the resolution was never rescinded so far as he knew, and that the cashier had never made any report of her acts under it. Three directors testified that Mrs. Wood had never been authorized to borrow from the plaintiff. Mrs. Wood testified that she was not authorized to borrow from plaintiff and didn’t borrow from him as assistant cashier or as an officer of the bank. Her claim was that she borrowed the money personally and with other moneys, of which she kept track in a “little book,” and of which there was an account in the bank under the head of “collections,” she made loans to various persons in varying amounts, and that she paid plaintiff his interest out of this account whether paid by the debtors or not. It is not necessary to detail her testimony with reference to the loans she made, but it appears the notes were taken in the name of the bank and indorsed in blank by the bank without recourse.
The court instructed the jury, but gave no instruction relating to the statute of limitation. The failure to give this instruction was not called to the court’s attention until the cause was ready to be submitted to the jury. Instead of amending the instructions the court submitted a special question, asking whether the bank paid any interest upon the $600 transaction mentioned in the first cause of action. The matter was then submitted to the jury, which rendered a general verdict in favor of plaintiff on the first cause of action and in favor of defendant on the two remaining causes of action, and answered the special question in the negative. The court held th'at owing to the negative answer, the first cause was barred by the statute of limitations, and rendered judgment for the defendant on all causes of action.
Plaintiff filed a motion for a new trial urging, among other reasons, that the verdicts relating to the second and third causes of action were contrary to the evidence and inconsistent with and contradictory to the verdict upon the first cause of action, and that the special finding was contrary to the evidence.
Appellant’s principal complaint is that the verdicts returned by the jury are, in view of the testimony offered, absolutely inconsistent, and by reason thereof, no sound basis for a judgment exists. His version of the three transactions, which he contends were loans to the bank, makes each substantially the same as the others, and the defense as to all three causes of action being merely that the loans were to. Grace E. Wood personally, and not to the bank, the verdicts on all three causes should have been the same, either all for the plaintiff or all for the defendant. The appellee contends that by reason of the difference in the manner in which the receipts were signed, the variations in the notations on the receipts and the length of time existing between the first transaction and the second and third transactions, the jury was warranted in arriving at different conclusions.
We are not impressed with appellee’s explanation. While it is true there are some variations in the receipts, the plaintiff’s testimony as to all three transactions was substantially similar, and until defendant’s version was presented, it could not be doubted that all stood on equal footing. The defense likewise was the same as to all three transactions — that the loans were to Grace E. Wood personally, and not to the bank. It was not contended by Mrs. Wood — and she was the sole witness — that there was any difference in the -three transactions. She handled the proceeds of all three loans in exactly the same manner, and gave a like account of her handling of the funds received — she made no distinction between the three transactions and made no claim that the receipts given covered different kinds of transactions. Her testimony, if believed, compelled a judgment in favor of the bank on all three causes of action, and if not believed, a judgment for plaintiff on all three. In Underwood v. Fosha, 89 Kan. 768, 133 Pac. 866, which was an action on two notes having the same history, wherein judgment was rendered for plaintiff on one note and denied on the other apparently on the ground that one was due and the other not due when both were transferred, it was held that the findings were inconsistent because plaintiff relied upon the title of his assignor and the question of holder in due course was immaterial, and the verdict was accordingly set aside and a new trial granted on both notes. In the opinion reference is made to Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633, and Edwards v. Railway Co., 86 Kan. 257, 119 Pac. 872. While the case at bar is distinguishable- in some aspects from the above case, and those hereafter referred to, in principle there is no difference between inconsistent general verdicts and inconsistent answers to special questions to support a general verdict. In Anderson v. Pierce, supra, the syllabus reads:
“Where the general verdict is in plaintiff’s favor, and the special findings made by the jury are supported by the evidence and are inconsistent with one another, or consistent with one another and inconsistent with the general finding, but not destructive of plaintiff’s right of recovery; a new trial should be ordered and not judgment entered for defendant.”
In Edwards v. Railway Co., supra, it was held that the answers to the special questions were inconsistent, and being inconsistent furnished no basis for a judgment in favor of either party. As bearing on the question see Burnett v. Street Railway Co., 90 Kan. 282, 133 Pac. 534; Anders v. Railway Co., 91 Kan. 378, 137 Pac. 966; Hauck v. Mercantile Co., 99 Kan. 790, 163 Pac. 457. We are not here concerned as to whose version should be believed by the trier of the facts, but jve are concerned with the proposition of consistency of the jury’s three verdicts, and, viewed from that angle, we are constrained to hold that the three verdicts, rendered upon substantially identical claims and defenses, are inconsistent, and, under the circumstances, a sound basis for a judgment does not exist.
The above conclusion is strengthened by consideration of the manner in which the cause was submitted. As has been mentioned, the court overlooked defendant’s defense that the first cause of action was barred by the statute of limitations, and just before the jury retired to deliberate, submitted a special question as to whether the bank paid interest on the $600 transaction mentioned in plaintiff’s first cause of action, which question the jury answered in the negative. In discussing this matter the trial court, in deciding the motion for a new trial, said, in part:
“A little more difficult question is presented on the other phase, as to the statute of limitations. I can see now that that question should have been fairly presented to the jury. It should not have been presented to them in the way that it was. You gentlemen will recall how that happened. I had prepared the instructions and overlooked the defense that the defendant made concerning the statute of limitations on the first count. The matter was ready to be submitted to the jury when my attention was called to that, and in discussing the matter it was felt that submitting some questions as to whether the bank had paid the interest would take care of the question of the statute of limitations. If the bank had not paid the interest, then it would be barred; if it had paid the interest it was not barred; and it was submitted in that way.”
As we view the matter, the manner in which the question of limitation was submitted did not fairly present the issue. The jury believed that the $600 transaction was a loan to the bank, otherwise it would not have returned a verdict for plaintiff. The record is undisputed that plaintiff received his interest by being credited on his bank book, as a deposit, the amount of interest due. At no place in the record is there any testimony or claim that Mrs. Wood ever told plaintiff that she was paying the interest. While appellant never filed any motion to set aside the answer to the special question, his motion for a new trial set up as one of the grounds therefor the fact that it was wholly contrary to the evidence. It seems rather apparent that the jury was not frank in saying that the transaction was a bank loan, but that the bank did not pay the interest, or was confused by the manner in which the issue was submitted.
The judgment of the lower court is reversed, and the cause remanded with instructions to grant a new trial as to the whole issue.
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The opinion of the court was delivered by
Fromme, J.:
The Court of Appeals in an unpublished opinion affirmed the district court’s judgment in this case holding all claims were barred by the three-year statute of limitations, K.S.A. 60-512(1). This statute covers actions brought upon obligations not in writing. We granted review to consider whether the five-year statute of limitations, K.S.A. 60-511(1), should govern. K.S.A. 60-511(1) provides:
“The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.”
The defendant, William A. Smith Constructing Company, Inc., by its employees, R. H. Miller and D. E. Huncke, after certain oral negotiations, submitted the following purchase order to Harold E. Miller d/b/a H. E. Miller & Sons Construction Company. It should be noted that the R. H. Miller who signed the purchase order had no connection with the latter company. The purchase order was as follows:
“To H. E. Miller & Sons Constr Co.
5801 Outlook
Shawnee Mission, Kansas
Date 10 August, 1971
Terms Net 30 Days
F.O.B. Job Site
Ship Via Your Truck
Rental of Equipment listed below, for work at Mission Lumber Co. 119th St. & 1-35, as called for by our Mr. Hayes, starting about August 18, 1971
1 ea Case Backhoe - Loader 19.00/hr
1 ea 6Y2 cy tandem dump truck 15.00/hr
Thurs Morning 8:00 a.m.
371-8184
8-25-71
WM. A. SMITH CONTRACTING CO., INC. Charge Job # 468
1401 Fairfax Twy
Kansas City, Kas. 66115
Signed R.H. Miller Title
Approved D. E. Huncke Project Manager.”
Under this agreement the equipment was furnished to the defendant on six separate days and on completion of the work the plaintiff submitted an itemized statement indicating a total of $1,496.00 was due under the agreement. More than three but less than five years passed before the present action was filed.
The plaintiff asserts that the writing is sufficient to constitute a promise in writing as required by K.S.A. 60-511(1) which limits such actions to a period of five years. Plaintiff argues that the purchase order and billing statement contain all essential terms of the contract between the parties. Nothing more is needed for the court to arrive at the terms and conditions of the agreement.
Defendant asserts that parol evidence is necessary to determine the contractual terms and that the writings do not contain all essential elements of the contract. Although defendant does not specifically state which contractual terms are not in writing, his reliance on Fairbanks v. Koelling, 167 Kan. 361, 205 P.2d 930 (1949), infers that he contends a written promise to pay is missing. In Fairbanks the writing relied on was as follows:
“ ‘Emmett, Kansas
“ ‘January 21, 1944
“ ‘Bought of Lloyd Fairbanks 4 stacks alfalfa, 2 first 2 second cuttings about 35 tons at $19.50 per ton in stack — 2 stacks brown alfalfa about 15 ton at $13.00 per ton in. stack. $25.00 check as down payment.
“ ‘C.H. Koelling
“ ‘707 West 17
“ ‘2-8145
“ ‘Topeka’ ”
Syllabus.
It is noted in Fairbanks the date of the agreement was given, the parties were named, the alfalfa purchased was specified, the prices were set forth, and the receipt of a check as down payment was acknowledged. The court in Fairbanks held, however, that the instrument was insufficient to be entitled to the protection of the five-year statute. The writing omitted any promise to pay on a day certain. It would not be possible to determine when the statute of limitations would begin to run. The court pointed out, that in order to prove a claim under the writing, evidence would have to be introduced to establish an oral understanding by the parties as to the time and manner of payment.
The general rule is that a written agreement, contract or promise in writing which falls within the five-year statute of limitations, K.S.A. 60-511(1), must contain all its material terms in writing. A contract which is partly in writing and partly oral is in legal effect an oral contract so far as the statute of limitations may be concerned. The writing necessary to have the additional protection of the five-year statute must be full and complete in itself so as not to require proof of extrinsic facts to establish all essential contractual terms. Fey v. Loose-Wiles Biscuit Co., 147 Kan. 31, 75 P.2d 810 (1938); Annot., 3 A.L.R.2d 809, 813 (1949); 51 Am. Jur. 2d, Limitation of Actions § 94, p. 668; 53 C.J.S., Limitations of Actions § 60, p. 1018.
The writing need not, however, be signed by all parties, and where a writing containing all the essential terms of a contract is executed by the party to be charged and the contract is accepted and acted on by the other party the contract is one in writing for purposes of determining which statute of limitations applies. See Fey v. Loose-Wiles Biscuit Co., 147 Kan. at 34-36; 51 Am. Jur. 2d, Limitation of Actions § 94, p. 669.
In the present case the purchase order was made up after oral discussions were completed between the parties. The writing identified the two parties to the agreement, the date of the writing, the nature of the equipment to be furnished, the prices to be paid, who was to transport the equipment to the job site, where it was to be delivered, and when payment was to be made (“Terms Net 30 Days”). In addition the writing was signed by and on behalf of the defendant. The plaintiff, thereafter, accepted and acted on the agreement by furnishing the required rental equipment and on completion of the project plaintiff submitted the itemized billing to show $1,496.00 was due. The amount was to be paid within 30 days after the machinery was last used, September 14, 1971. The petition in this case was filed August 23, 1976, within the five years required.
Under this writing the promise to pay “Terms Net 30 Days” coupled with the other terms set forth therein fulfilled the requirement that all material terms of the promise to pay be set forth in writing. The action based thereon was one which could be brought within five (5) years under K.S.A. 60-511(1).
Since the action must be reversed and remanded to the trial court one additional matter should be considered. Maryland Casualty Company appeared only as the indemnity insurer of defendant and was joined in the action as such. The trial court sustained a motion for summary judgment in favor of Maryland. When plaintiff appealed Maryland was named and joined as an appellee. However, plaintiff-appellant failed on appeal to address the question of the correctness of the summary judgment in favor of Maryland. On oral argument counsel for appellant advised that he was abandoning said appeal. If Maryland is an indemnity insurer of defendant it is generally accepted it cannot be sued until judgment has been obtained against its insured. See Bayless v. Bayless, 193 Kan. 79, 392 P.2d 132 (1964), and cases cited therein at page 80.
Accordingly the judgment of the district court in favor of Maryland Casualty Company is affirmed. The judgment of the Court of Appeals and of the district court in favor of defendant, William A. Smith Constructing Company, Inc., is reversed and the case is remanded for further proceedings in the trial court.
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The opinion of the court was delivered by
Prager, J.:
This case arose as the result of a dispute between the trustee of an inter vivos trust and the settlor’s administrator over the question of whether certain personal property should be included as assets of the estate of the deceased, Leon Stahl, or were properly assets of the trust created by Leon Stahl prior to his death. The facts in the case are not in dispute and are essentially as follows: On April 29,1975, Leon Stahl executed a written trust agreement. The principal beneficiary of the trust agreement is Chloe Barber. The trust agreement specifically described certain personal property to be placed in the trust estate, including three certificates of deposit issued by the Security State Bank of Auburn, Kansas. At the time of the execution of the trust agreement, the certificates had a value of $32,460.86. The named trustee, R. L. Goodyear, accepted his appointment as trustee.
Leon Stahl died intestate on October 9, 1975. An administration of his estate was commenced in the probate court of Osage County on November 7, 1975. Ellis L. Swarts was appointed administrator of the Stahl estate. The three certificates of deposit mentioned above were found by the administrator in the safety deposit box of Leon Stahl. The administrator listed the three certificates of deposit as property belonging to Leon Stahl and included them in the inventory of his estate. At this point, a controversy arose between the trustee and the administrator. The trustee, Goodyear, and later the beneficiary, Chloe Barber, filed petitions to strike the three certificates of deposit from the inventory, contending that the three certificates were a part of the trust estate.
That issue was first litigated in the probate court of Osage County. After a full hearing, the probate court found that the certificates of deposit were not assets of the estate but in fact were trust assets. On July 28, 1976, the probate court ordered the three certificates of deposit stricken from the estate inventory. That decision was appealed by the administrator to the district court of Osage County. Thereafter, a trial de novo was held before the Honorable Robert F. Stadler on the petitions to strike. After a full evidentiary hearing, the matter was taken under advisement by the district court. Subsequent to the hearing and prior to any decision being made by Judge Stadler, the administrator filed a petition on September 13, 1977, advising the district court that the administrator, as representative of the heirs, and R. L. Goodyear, trustee, and Chloe Barber, trust beneficiary, had tentatively entered into a proposed compromise settlement, a copy of which was attached to the petition. The petition requested the district court for an order authorizing the administrator to enter into the proposed settlement. Under the terms of the settlement, $10,000 from the funds in the hands of the trustee, Goodyear, would be paid into the Leon Stahl estate. The Stahl estate would be re sponsible for paying the funeral bill of Leon Stahl. The remaining trust funds, including the three certificates of deposit, would become the sole property of the trust to be distributed to the beneficiary, Chloe Barber, in accordance with the trust agreement.
A hearing was held by Judge Stadler on the petition for authority to enter into the compromise settlement. Following the hearing on October 11, 1977, the district court entered an order granting authority to the administrator
“to negotiate in behalf of the estate and to accept in behalf of the estate any compromise settlement in relation to the inclusion of property within the inventory of the estate of Leon Stahl, deceased.” (Emphasis supplied.)
Upon the basis of that order, a compromise settlement was then entered into on October 18, 1977, between Ellis L. Swarts, as administrator of the Stahl estate and R. L. Goodyear, trustee, and Chloe Barber, beneficiary of the Leon Stahl trust. This settlement conformed to the proposed settlement which had been attached to the administrator’s petition to authorize settlement. Some, of the Stahl heirs were dissatisfied with the compromise settlement and brought a timely appeal to this court.
On the appeal, the dissatisfied heirs contend in substance that the administrator of the estate could not compromise the issue as to the ownership of the three certificates of deposit without the consent of all heirs of the estate, including the appellants. The objecting heirs maintain that the trial court’s order was too broad in its scope, since it authorizes the administrator to accept any compromise settlement in relation to the inclusion of property within the inventory of the estate and that, under all of the circumstances, they were denied their right to contest the claim of the trustee to the three certificates of deposit. The trustee and the beneficiary contend that the administrator’s petition for authority to compromise the trustee’s claim sought only authority to enter into the specific compromise settlement which was attached to the petition, and that, although the journal entry signed by the district judge was broader in its authorization that the petition had requested, the administrator did, in fact, enter into a compromise settlement exactly in conformity with the proposed settlement attached to his petition and, therefore, no substantial rights of the heirs were prejudiced. They further maintain that the administrator of an estate has the authority to compromise a claim made against the estate, provided the approval of the probate or district court is first obtained. The trustee and beneficiary then contend that, since the specific compromise settlement in the present case was, in effect, approved by the district court, all procedural requirements for approval of the compromise settlement were satisfied. Hence, they argue, the appeal of the objecting heirs is without merit.
The basic issues to be determined are whether the administrator of an estate has the power to compromise or settle a claim filed against the estate and, if such power exists, the procedural requirements necessary to be followed for the administrator to exercise such power. In determining these issues, it would be helpful to examine certain basic principles of law which have been established to guide the administration of estates of decedents in this state:
(1) The statute which governs the exhibition of demands and the procedural steps to be followed in determining their validity is K.S.A. 59-2237, which provides as follows:
“59-2237. Exhibition of demands and hearing thereon; allowance without hearing, when. Any person may exhibit his or her demand against the estate of a decedent by filing a petition for its allowance in the proper district court. Such demand shall be deemed duly exhibited from the date of the filing of said petition. The petition shall contain a statement of all off-sets to which the estate is entitled. The court shall from time to time as it deems advisable, and must at the request of the executor or administrator, or at the request of any creditor having exhibited demand, fix the time and place for the hearing of such demands, notice of which shall be given in such manner and to such persons as the court shall direct.
“Any demand not exceeding two hundred dollars ($200), duly itemized and verified, may be allowed, if approved in writing by the executor or administrator, without compliance with any of the provisions of this act relating to petition, notice of hearing, or otherwise. The verification of any demand may be deemed prima facie evidence of it validity unless a written defense thereto is filed. Upon the adjudication of any demand, the court shall enter its judgment allowing or disallowing it. Such judgment shall show the date of adjudication, the amount allowed, the amount disallowed, and classification if allowed. Judgments relating to contingent demands shall state the nature of the contingency.” (Emphasis supplied.)
In interpreting K.S.A. 59-2237, this court has held that the sole function of the probate judge, after a hearing on a demand against an estate under 59-2237, is to enter judgment either allowing or disallowing the demand. In re Estate of Fast, 170 Kan. 352, 225 P.2d 1056 (1951). This result necessarily follows in view of the express language of K.S.A. 59-2237 that “upon the adjudication of any demand, the court shall enter its judgment allowing or disallowing it.”
(2) A claim of a person that certain property in the possession of the decedent at death and inventoried in the estate belongs to him and is not properly an asset of the estate constitutes a “demand” and is subject to the provisions of K.S.A. 59-2237.
We so held in In re Estate of Paronto, 172 Kan. 7, 238 P.2d 464 (1951); In re Estate of Pratt, 164 Kan. 512, 190 P.2d 872 (1948); In re Estate of Bourke, 159 Kan. 553, 156 P.2d 501 (1945). It should be emphasized that the rule is applicable only where personal property is in the possession of the decedent at the time of his death. Where property is in the possession of another at the time of the death of the decedent, the person asserting ownership of the property is not required to file a claim for the property in the court administering the decedent’s estate. In that situation the burden is placed upon the personal representative of the decedent to bring an action against the person in possession for recovery of the property. Oswald v. Weigel, 215 Kan. 928, 529 P.2d 117 (1974).
(3) The administrator or executor of an estate, as the personal representative, is ordinarily the only one authorized to represent the estate. In re Estate of Johnson, 164 Kan. 45, 187 P.2d 376 (1947). The personal representative is obligated to protect not only the interests of the heirs but also the interests of creditors. Richards v. Tieman, 150 Kan. 116, 91 P.2d 22 (1939).
(4) An administrator or executor has the power to compromise a disputed claim against the estate, subject to the approval of the probate court either at the time the compromise settlement is entered into or on final settlement of his account.
It was generally recognized at common law that an executor or administrator had the power to settle or compromise disputed or doubtful claims against the estate subject to the approval of the court. The compromise settlement would be rejected by the court only on proof of bad faith or fraud. This common-law power has been somewhat restricted by statutes which require the personal representative to secure prior approval of the court before a binding compromise settlement is executed. See 31 Am. Jur. 2d, Executors and Administrators § 259; 34 C.J.S., Executors and Administrators § 469; and the annotation with supporting cases at 72 A.L.R.2d 243, 250. The common-law rule is recognized in Sarbach v. Deposit Co., 99 Kan. 29, 160 Pac. 990 (1916). In Sarbach, a compromise settlement of a claim was challenged by a creditor at the time of the accounting and settlement of a partnership estate in probate court.
(5) By statute, an executor or administrator may compromise a debt owed to the estate with the approval of the probate court. In this regard, K.S.A. 59-1714 provides as follows:
“59-1714. Compromise with debtor. Whenever it appears for the best interests of the estate, the fiduciary may, on order of the court, effect a fair and reasonable compromise with any debtor or other obligor.”
Cases recognizing the right of an executor or administrator to compromise a debt owed the estate with approval of the probate court are Van Dusen v. Woolen-mill Co., 74 Kan. 437, 87 Pac. 74 (1906) and Aetna Life Ins. Co. v. Swayze, Adm’x., 30 Kan. 118, 1 Pac. 36 (1883).
(6) In settling or compromising a demand against the estate, the administrator’s duty is to exercise the utmost good faith which implies honesty, fair dealing, and adequate information with the ultimate object of his acting in the best interests of the estate. In re Estate of Lohse v. Rubow, 207 Kan. 36, 483 P.2d 1048 (1971).
In Lohse a judgment creditor and the heirs of the decedent filed a petition in probate court for removal of the administrator because of his refusal to demand settlement by the deceased’s insurance carrier of a wrongful death claim filed against the estate. The trial court’s refusal to order the administrator’s removal was sustained on the appeal to this court.
In determining the basic issue of whether an administrator or executor has the power to compromise a demand filed against the estate without the consent of all the heirs, we must consider the express provisions of K.S.A. 59-2237 together with our prior case law on the subject. As noted above, K.S.A. 59-2237 makes it mandatory for a petition for allowance of a demand against an estate to be set for hearing at the request of the personal representative or a creditor and that the demand either be allowed or disallowed by the court. In applying the statute, it is obvious to us that a proposed compromise settlement of a demand must either be approved or disapproved by the district court at the hearing for determination of the demand in order for the demand to be either allowed or disallowed by the district court.
In approving or disapproving a proposed compromise settlement of a demand, a district court has a broad discretion. Before a compromise settlement is approved, however, the district court must find that the administrator or executor exercised the utmost good faith with honesty, fair dealing, and adequate information, and that the proposed compromise settlement is in the best interests of the estate. In re Estate of Lohse, 207 Kan. 36. If the district court in approving a compromise settlement of a demand makes the requisite findings, and the findings are supported by the evidence, the decision of the district court is binding upon creditors and heirs of the estate. After the compromise settlement has been approved, the district court should then enter judgment allowing or disallowing the demand either in whole or in part as required by K.S.A. 59-2237. When a final judgment has been entered in that manner, any aggrieved heir or creditor is afforded the right to an appeal. An heir has the right to appeal from the allowance of a demand. Smith v. Smith, 107 Kan. 628, 193 Pac. 317 (1920). In Gift v. Lennen, 113 Kan. 467, 218 Pac. 996 (1923), it was held that one who purchases land of the estate from heirs is entitled to appeal from an order allowing a demand against the estate. In Sarbach, the right of a creditor to appeal from the allowance of a demand against an estate was recognized.
With these established principles of law in mind, we turn to a resolution of the case before us. We have concluded that the district court had the power to approve the proposed compromise settlement of the trustee’s demand for the three certificates of deposit over the opposition of certain heirs, provided the trial court made findings of fact and conclusions of law that the administrator had exercised the utmost good faith with honesty, fair dealing, and adequate information, and that the compromise settlement was in the best interests of the estate. Following the approval of the specific proposed compromise settlement, the trial court should then have proceeded to allow or disallow the demand either in whole or in part as required by K.S.A. 59-2237. At that point, a final judgment would have been entered from which an appeal could be taken by an aggrieved party.
We wish to emphasize that the objecting heirs had the right to offer evidence in opposition to the proposed compromise settlement. They further had the right to appeal the allowance or disallowance of the demand based upon any approved compromise settlement. If the findings of the trial court are supported by the evidence and no showing is made of an abuse of discretion, the judgment of the district court is binding on the heirs and creditors of the estate and should be upheld on appeal.
The difficulty presented in this case is that the order of the district court was overly broad in scope as noted above. In its order, the district court granted to the administrator of the estate of Leon Stahl the authority “to negotiate in behalf of the estate and to accept in behalf of the estate any compromise settlement in relation to the inclusion of property within the inventory of the estate of Leon Stahl, deceased.” (Emphasis supplied.) Such an order was beyond the authority of the district court. The district court should have held a hearing on the specific compromise settlement proposed and either approved or disapproved that compromise settlement. If it disapproved the compromise settlement, the trial court should have proceeded to determine the demand against the estate as contained in the petitions of the trustee and beneficiary. If the trial court approved the proposed compromise settlement, it then should have allowed the demand of the trustee and beneficiary in whole or part in accordance with the proposed settlement.
Under all the circumstances, we have concluded that the case must be reversed and remanded to the district court with directions to consider the petitions of the trustee and the trust beneficiary along with the proposed compromise settlement and then proceed to determine the rights of the parties in accordance with the legal principles and procedures set forth in this opinion.
The judgment of the district court is reversed and remanded.
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal by defendant-appellant Betty L. Giddings from a conviction by a jury of one count of first degree murder under the felony murder rule, K.S.A. 21-3401. The underlying felony was robbery.
The victim, Jack D. Reynolds, was a pipefitter from Enid, Oklahoma, and had been working near St. Marys, Kansas. On Sunday, January 15, 1978, at 10:00 a.m., Reynolds left his home for St. Marys in anticipation of going to work on Monday. He intended to visit friends in Topeka and watch the Super Bowl game Sunday afternoon. Sunday night about 10:30 p.m., Reynolds was found lying alongside State Avenue in Kansas City, Kansas. The lower part of his body was wrapped in a blanket, subsequently identified as belonging to the defendant, and tape was wrapped around one of his wrists. Reynolds had been shot twice in the head with a .22 caliber weapon and died the next morning at the University of Kansas Medical Center.
The only evidence of what may have occurred between 10:00 a.m. and 10:30 p.m. that Sunday is in three inconsistent statements given by defendant and her lengthy testimony at trial. The gist of all her statements and testimony was to the effect that she was an innocent bystander and that her sometime live-in boy friend, Jerry Clayton, was solely responsible. Clayton was charged but has not been apprehended and tried.
We will not attempt to state the complicated facts that may be gleaned from the various inconsistent statements and testimony of the defendant other than to the extent necessary to consider her points on appeal.
Appellant’s first argument is that it was error for the trial court to admit into evidence a sawed-off shotgun, shotgun shells, a hacksaw and photographs of the same items. As Reynolds was killed with a .22 caliber weapon, it is obvious that these items were not the murder weapons. The shotgun had been taken on January 11th by appellant and Clayton from her stepfather’s house in Osborne, Kansas. At the time, the appellant was trying to raise money to get a daughter out of jail in Beloit. The hacksaw and shotgun shells had been purchased in Osborne and the hacksaw was used to saw the barrels off the shotgun. Appellant and Clayton had traveled to Beloit in a rented car and returned to Kansas City on January 14th or 15th. On the night of the 15th they first made contact with the victim and ultimately he was shot, and defendant and Clayton departed with the victim’s truck and other belongings. The hacksaw was found in the trunk of the car admittedly used by appellant and Clayton during the robbery and murder and the other items were discovered at appellant’s home along with property which belonged to the victim. The trial court found the evidence to be relevant and admitted it as part of the res gestae. Relevant evidence is evidence having any tendency in reason to prove any material fact and the determination of relevancy is a matter of logic and experience, not a matter of law. State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978). Subject to certain exclusionary rules the admission of evidence lies within the sound discretion of the trial court. State v. Jakeway, 221 Kan. 142, 558 P.2d 113 (1976); State v. Wasinger, 220 Kan. 599, 556 P.2d 189 (1976); State v. Baker, 219 Kan. 854, 549 P.2d 911 (1976). The items admitted in evidence bore a reasonable relationship to the facts as determined from the statements and testimony of the defendant. Appellant’s first point is without merit.
Appellant’s second point concerns the refusal of the trial court to give certain requested instructions. The underlying felony upon which the felony murder conviction was based was the robbery of the victim.'Certain property of the victim was found in appellant’s home, the blanket in which Reynolds was wrapped belonged to appellant and appellant and Clayton collaborated in the sale of the victim’s truck. Appellant contended throughout her various statements and testimony that Clayton was the culprit and she was an innocent bystander who could not manage to escape. The trial court gave instruction No. 5 based upon PIK Crim. 54.05 (1975 Supp.) as follows:
“A person is criminally responsible for the conduct of another, when, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, she intentionally aids or advises the other to commit the crime.”
Appellant did not object to this instruction but requested in addition to it a variation of PIK Crim. 54.06, which reads:
“A person who intentionally (aids) (hires) another to commit a crime is responsible for any other crime committed in pursuance of the intended crime, if such crime was reasonably foreseeable.”
Appellant argues that the foreseeability instruction should have been given based upon K.S.A. 21-3205(2) and in addition she requested an instruction on robbery as being the underlying felony.
K.S.A. 21-3205 provides in part:
“21-3205. Liability for crimes of another. (1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by him as a probable consequence of committing or attempting to commit the crime intended.”
Appellant argues that as the court gave an instruction based upon K.S.A. 21-3205(1), she was entitled to an instruction based upon 21-3205(2) and the failure to give such an instruction deprived her of the defense of a lack of foreseeability that the murder might result. While it is true that foreseeability is a requirement to the application of the felony murder rule, this requirement is satisfied once it is determined that the felony is inherently dangerous to human life. This point was covered in State v. Branch and Bussey, 223 Kan. 381, 573 P.2d 1041 (1978):
“To apply the felony murder rule, it is only necessary to establish that defendants committed a felony inherently dangerous to human life and that the killing took place during the commission of the felony. (State v. Guebara, 220 Kan. 520, 523, 553 P.2d 296; State v. Goodseal, 220 Kan. 487, 553 P.2d 279.) A requirement of the felony murder rule is the fact the participants in the felony could reasonably foresee or expect that a life might be taken in the perpetration of such felony. If applied to the facts of the present case, defendants are subject to the felony murder rule and it makes no difference that the killing was accidental.
“A felon’s attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate that a death might occur. This is particularly true of a robber who carries a deadly weapon (as these robbers did) and forces his way into an occupied dwelling. The impulse for an individual to resist the sudden show of force, to defend himself or to come to the aid of a family member or loved one, is a basic human instinct. Under such circumstances every robber who expects human opposition to his quest to steal, as he must when he commits a statutory robbery, is a potential assassin because he knows he may be forced to use his weapon either to carry out his criminal act or to escape without being pursued and captured by his victim. In a felony inherently dangerous to life the intent to accomplish the initial felony is transformed into malice and premeditation upon the death of a human being and the felon is guilty of.first degree murder. . . .
“We conclude that any participant in a life-endangering felony is guilty of first degree murder when a life is taken in the course of committing or attempting to commit the felony, whether the death was intentional or accidental, or whether the participant directly caused it to occur. (See, State v. Bey, 217 Kan. 251, 535 P.2d 881; State v. Turner, [193 Kan. 189, 392 P.2d 863]; State v. Bundy, 147 Kan. 4, 75 P.2d 236.)” (pp. 382-384.)
It is therefore readily apparent that in the case at bar where the evidence clearly established appellant was more than an innocent bystander being coerced by Clayton, the court did not err in refusing to give the foreseeability instruction requested by appellant.
Appellant also argues the jury should have been instructed that she might be convicted of the crime of robbery contending the jury might have found that she aided or abetted Clayton in the robbery under 21-3205(1) but could not reasonably foresee that the murder might result as required by 21-3205(2).
Appellant’s argument that an instruction on robbery was justified appears at first blush to be logical. Further analysis, however, discloses the fallacy in such an argument. Appellant was charged with murder and not with robbery. Unless robbery was a lesser included offense of that charged in the information, she could not be convicted of the crime of robbery. In State v. Phillips, 136 Kan. 407, 15 P.2d 408 (1932), the defendant was charged and tried for the crime of robbery. Defendant requested an instruction on the offense of accessory after the fact and the trial court refused to give such an instruction. This court stated:
“It is next contended that the court erred in failing to submit to the jury the offense of accessory after the fact. The offense of being an accessory after the fact is defined by the statute (R.S. 21-106), and is a separate and distinct offense. It is no part of any other offense nor is it any degree of any other offense. (State v. Stoy, 117 Kan. 124, 230 Pac. 335.) Consequently it was not included in the crime charged in the information. An instruction concerning an offense that is not charged in the information on which the defendant is being tried is improper, and it is not error for the court to refuse to give such instruction. (State v. Hobl, 108 Kan. 261, 194 Pac. 921.) If the evidence was insufficient to support the offense charged in the information or an offense included therein, the defendant should have been discharged. He cannot be tried for an offense not included in the information.” p. 410.
See also State v. Turner, 193 Kan. 189, 200, 392 P.2d 863 (1964).
Robbery is not a lesser included offense of murder as the elements of the crime of robbery are not necessarily included in those of murder. State v. Rueckert, 221 Kan. 727, 733, 561 P.2d 850 (1977). Appellant was not charged with robbery, which is not a lesser included offense of murder, and therefore she could not have been convicted of robbery. The court properly instructed the jury on the elements of robbery as the underlying felony for the charge of murder.
In the present case, appellant maintained throughout that she was not a participant and not guilty of any crime. The evidence was otherwise. At one time during the evening, according to the bizarre set of facts pieced together from appellant’s own statements and testimony, she was driving around with the victim, unharmed, locked in the trunk of the car while Clayton was driving off in the victim’s truck. No attempt was made by appellant to escape from Clayton but instead, she followed him in the car. Subsequently, when all were together again, Reynolds was taken from the trunk and placed in the back seat of the car where a scuffle occurred between Reynolds and Clayton resulting in Reynolds being shot. Appellant and Clayton then abandoned Reynolds in the ditch, took his truck and other belongings and later sold the truck. Other evidence was equally convincing that appellant was more than an unwilling bystander fearful for her own safety. The trial court’s refusal to give the requested instructions did not constitute error.
Appellant next contends that the trial court committed error in refusing to suppress the three statements she had given prior to trial. She does not contend that she was not advised of her rights nor does she contend that she did not understand them. Her argument is that they should have been suppressed based upon the “totality of the circumstances.” The trial court held appropriate hearings on each of the statements and found them to be admissible. We have carefully reviewed the record on all arguments raised by appellant in attacking the admissibility of her statements and find them to be without merit. State v. Watkins, 219 Kan. 81, 547 P.2d 810 (1976) and cases cited therein.
Next appellant asserts error in the admission in evidence of a box of .38 caliber bullets and a photograph thereof. The bullets were identified by Mrs. Reynolds as similar to ones possessed by the victim when he left Enid, Oklahoma. They were found in appellant’s house along with other property definitely identified by Mrs. Reynolds as belonging to her deceased husband. The photograph showed the location of the bullets in defendant’s home along with the other Reynolds property. It is not necessary that identification of physical objects be positively and indisputably established for them to be admissible. The lack of positive identification affects thé weight of such evidence and not its admissibility. State v. Martin, 223 Kan. 78, 573 P.2d 576 (1977).
Finally, appellant argues the trial court erred in overruling her motion for acquittal at the close of the State’s evidence. The applicable test to determine whether a judgment of acquittal should be entered at the close of the State’s evidence is set out in State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976) as quoted from State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973):
“ ‘A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.’ (Syl. 3.)”
The evidence in this case clearly reflects that a reasonable mind could fairly conclude guilt beyond a reasonable doubt. The trial court did not err in overruling the motion for acquittal.
The judgment is affirmed.
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The opinion of the court was delivered by
Bxjrch, J.:
Defendant was convicted of violation of the speculative securities act. He was charged in one count of the information with selling one hundred shares of unregistered corporate stock, and in another count with making the sale as agent without being registered as agent. The jury found defendant guilty on both counts. The court adjudged defendant guilty of “the crime” of selling unregistered securities, and selling securities without being registered as agent, and imposed a single sentence.' Defendant appeals.
The complaint on which the warrant for defendant’s arrest was issued, and the, warrant, charged unlawful sale of securities without naming the purchaser. Defendant waived preliminary examination. The information charged sale to William Keith, and defend ant filed a plea in abatement on the ground he had not been tendered a preliminary examination on the charge of sale to Keith. Defendant was warned the proceedings portended an information charging sale to Keith. The complaint was verified by the county attorney. Attached to and made part of the complaint was a sworn statement by Keith, giving details of a sale to him.
Defendant complains because the information charged violation of the securities act without negativing certain exemptions specified in the act. The act specifically provides for that method of pleading (R. S. 1931 Supp. 17-1245) and, without the statute, the pleading was good. (State v. Nossaman, 120 Kan. 177, 243 Pac. 326; State v. Eary, 121 Kan. 339, 343, 246 Pac. 989.)
Defendant was prosecuted for sale of unregistered shares of stock.
The speculative securities act forbids sale of certain securities. The term “sale” includes any disposition for value, and the term “securities” includes any stock, share, bond or note. (R. S. 1931 Supp. 17-1223 [2] [3].)
What defendant did was to enlist Keith’s interest in a gold mine in Alaska, development of which was promoted by the Corgona Gold Mining Company. The result was, Keith was induced to pay $100, for which he was to receive and did receive the company’s promissory note for $100 and one hundred shares of stock of the company. This was not an isolated transaction. The company was financing its project by such transactions, and defendant received a commission of twenty per cent on all money he raised in that way.
It is plain the note was a security disposed of to Keith for value, precisely as if it had been a bond. The shares of stock were also securities which were in fact included in the transaction of disposition for value to Keith of the other security. While it was definitely understood that if Keith advanced $100 to the company he would get both the note and the shares of stock, he was told, in the course of the negotiations, the company was not selling stock. At the trial the court included in the instructions to the jury the following portion of the speculative securities act:
“Any security given or delivered as a bonus with any sale of securities, as such sale is herein defined, or with any other thing, shall be conclusively presumed to constitute a part of the subject of such sale and to have been sold for value.” (R. S. 1931 Supp. 17-1223 [2].)
Defendant contends the statute is void, as invading the province of the judiciary to determine the existence or nonexistence of facts on which rights and liabilities depend.
The quoted provision is contained in the section of the statute devoted to definition of sale, and has nothing whatever to do with evidence. The legislature knew, as everybody knows, that giving bonus stock is a method of putting over a sale, and what the statute does is to include that element of a sale transaction in the definition of sale. So interpreted, the statute is valid.
Defendant requested numerous instructions, which were not given. Those of chief importance were not in accord with the views which had been expressed, and the jury was clearly and adequately instructed.
Defendant moved to require the state to elect whether it would rely for conviction on the count charging sale of unregistered securities or on the count charging sale by an unregistered agent. The motion was denied. The subject is not important because of the nature of the court's judgment and the nature of the sentence. The question raised by the motion is discussed in the opinion in the case of State v. Fleming, post, p. 464, this day decided.
There is nothing else of consequence in the appeal, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment quieting title.
Appellants were the owners of a half-section of land mortgaged for $6,000. They were also indebted to the Protection State Bank in the sum of $5,265.31. In October, 1932, the mortgagee was threatening foreclosure and the bank was pressing for payment, and an arrangement, the terms of which are disputed, was made between appellants and the bank. There is no dispute, however, that on October 26, 1932, the appellants conveyed the land to the bank by a general warranty deed, subject to the $6,000 mortgage, and that the deed contained no reservations by grantors of title or of any interest in the land. At the same time the bank addressed a letter and delivered it to the appellant, T. M. Dorsey, in which receipt of the deed was acknowledged and that it was taken in payment of the sum of $5,265.31 due and owing to the bank, leaving a balance due and owing to the bank of $215, which it agreed to carry in the form of a note due not later than July 15, 1933. On the evening of the same day the officers of the bank approached the plaintiff and endeavored to sell her the land and told her they had a deed to it. The plaintiff lived about three and one-half miles from the land in question and was familiar with it. After discussion as to price and her own financial condition, with which the bank officers were familiar, as she and her husband had for some time been customers of the bank, she agreed to buy the land subject to the mortgage of $6,000, for $6,000, or a total price for the land of $12,000. Plaintiff held a certificate of deposit on said bank in the sum of $4,226.46, which with other papers she left at the bank for safe-keeping. She authorized the bank to cash this certificate and use the principal and the interest 'amounting to $113.15 as part payment, and she also turned in two notes which she had previously purchased from the bank, one for $206.50 on which there was $4.81 interest due, and one on which there was a balance of $1,451.75. The proper officers of the bank made a deed to her and told her of it. In January, 1933, as nearly as we can tell from the abstracts, the deeds were recorded. The bank paid the unpaid taxes and interest due on the mortgage at the time the plaintiff purchased the land. In March the plaintiff leased the land, but nothing was to be done under that lease until the land was to be prepared for wheat. In June, 1933, when her tenant started to- plow, the appellants made claims which are hereafter referred.to, and this action followed.
Plaintiff’s petition stated a cause of action to quiet title, and a second cause of action having to do with the ownership of the wheat and the spring crop. As the second cause was dismissed by the court, and there is no appeal on account thereof, it will not be noticed further. Defendants answered by a general denial, and filed a cross petition setting up their version of the transactions with the Protection State Bank and claiming that their agreement at the time the deed was made by them was that they should have the right for two years to redeem the land upon payment by them to the bank and in the meantime they were to have possession, and that if such provisions were not in the deed made by them the same were omitted by mutual mistake or by design of the cashier of the bank. Allegations of possession and planting of crops were made, and it was further alleged that the consideration passing from the plaintiff to the bank was by way of credit on a preexisting debt, and that any other consideration was given after plaintiffs were aware of defendants' rights; that Waters, cashier, and the bank were plaintiff’s agents in the purchase and handling of said land, and that the bank was a proper and necessary party. The prayer was that the deed be reformed to set out the agreement between the bank and the defendants; that plaintiff’s rights be held inferior to those of defendants; that plaintiff take nothing on her second cause of action, and that the bank be made a party defendant. Plaintiff filed a verified general denial, but admitted that defendants delivered their deed to the bank, and that theré was wheat growing on October 26, 1932, and that Waters was then cashier of the bank.
The bank was made a party defendant, and answered admitting the first cause of action of plaintiff’s petition and denying all parts of defendants’ cross petition inconsistent therewith and set up matters pertaining to its good faith.
At the trial plaintiff offered evidence about her purchase of the land, about her leasing it and that she did not know of defendants’ claims until in June, 1933. When the defendants were presenting their case, a demand for a jury was made by them, the plaintiff objected that the bank was not a proper party and the bank moved that it be dismissed as a party. The court dismissed the second cause of action, which pertained to ownership of wheat, without prejudice, and held that the defendants must show either that plaintiff was a purchaser with notice or failure of consideration before they could sustain their action to reform the deed as to the bank. It may here be noted that there was no testimony that plaintiff knew of defendants’ claims until June, 1933. The matter of failure of consideration is hereafter treated. As the trial proceeded the court sustained objection to testimony showing defendants had sown wheat on the land in October, 1932, that the land was partially inclosed and that cattle were pastured thereon during the winter of 1932-1933. Objections were also sustained to an offer to prove the transaction between the defendants and the bank, there being no claim that plaintiff was aware of defendants’ claim at the time of her purchase. Defendants produced a witness who testified that the note dated November 27,1929, for $1,793.90, on which a payment of $502.58 was made June 2, 1930, was of small value on October 26, 1932. As to the other note of two hundred odd dollars, he testified only that he had known the maker some six or eight years previously and his financial condition was not then good. On cross-examination, he stated he based his opinion as to the large note on the collateral back of the note or the property the maker had, and then admitted he didn’t know what property the maker had, but stated that the note was too long past due. Plaintiff’s demurrer to the defendants’ evidence was sustained on the ground it did not prove a defense. The bank’s motion to be dismissed as a party was allowed. On the hearing of defendants’ motion for a new trial a showing was made as to the evidence offered and refused, and, after consideration, the motion was denied, and in due time defendants perfected their appeal. Appellants present four contentions, which will be noticed in order.
They contend first that a purchaser must examine the recorded deed to his grantor or, where it has not been recorded, the deed itself, to see the condition of the deed and title before he can ignore possession of the premises by the makers of the deed to his grantor. It appears here that appellants’ deed to the bank was a general warranty deed conveying the property subject to the $6,000 mortgage, free and clear of other encumbrance and without any reservation by the appellants of any interest in the land. It is true that appellee did not examine this deed. The officers of the bank told her they had it, and that was true. Just what she would have discovered from examining the records in the register of deeds’ office is not made to appear, for the deed had not been recorded, and had she examined the deed itself she would have discovered only what the bank told her, that it had a deed for the land. Appellants contend, however, that their possession gave notice to the plaintiff of their rights in the property. It may be remarked that the authorities generally are not in accord as to the effect of the continued possession by a grantor as notice of rights inconsistent with his grant. In 27 R. C. L. 727 et seq. (Vendor & Pur. § § 491, 492) and 66 C. J. 1173 (Vendor & Pur. § 1019) will be found statements with reference to both views. And see, also, 1 R. C. L. 751 and 2 C. J. 143.
In this state the decisions seem to be to the effect that continued possession by the grantor after conveyance mad'e is not notice to a purchaser from the grantee. In McNeil v. Jordan, 28 Kan. 7, the purchaser had no notice of the fraud, but had examined the records in the office of the register of deeds. In discussing the question of the effect of the grantors remaining in possession it was said:
“A purchaser from the grantee of the party in possession need not inquire whether such party has reserved any interest in the land conveyed. So far as the purchaser is concerned, the actual occupant’s deed is conclusive upon that point. The object of the law in holding possession constructive notice is to protect the possessor from the acts of others who do not derive their title from him, not to protect him against his own acts, not to protect him against his own deed. Therefore, where a grantor executes and delivers a deed of conveyance to go upon record, he says to the world: ‘Though I am yet in the possession of the premises conveyed, it is for a temporary purpose, without claim of right, and merely as a tenant at sufferance of my grantee.’ ” (p. 16.)
The matter was considered again in Hockman v. Thuma, 68 Kan. 519, 75 Pac. 486, and it was held:
“Possession of real estate by the grantor in a warranty deed does not impart notice to a purchaser from the grantee of secret equities existing in favor of the person occupying the land. The possession in such case by one who has conveyed the land indicates that he is holding the premises for a temporary purpose only, as a tenant at sufferance of his grantee.” (Syl.)
And see Balin v. Osoba, 76 Kan. 234, 91 Pac. 57, where a somewhat similar situation was discussed.
While it is true that here appellee did not examine the record, if she had she would have discovered nothing, and she accepted the bank’s statement it had a deed rather than examine the deed itself. We fail to see where she is at fault. It is conceded that neither a search of the records nor an examination of the deed would have disclosed the appellants’ claimed parol reservation of an interest in the land. We are of the opinion that, under the circumstances, the continued possession of the real estate by the appellants was not notice to the appellee of their claimed, but undisclosed, reservation of an interest in the real estate!
It is also contended by appellant that the only consideration passing from the appellee to the bank was payment of a preexisting debt and that appellee gave no present valuable consideration. Appellee held a certificate of deposit for moneys deposited by her in the bank, and it was cashed and the proceeds used. In Morse on Banks and Banking, p. 710, 6th ed., it is said:
“By custom, banks receive their own certificates of deposit as payment, and such custom will be judicially noticed by the courts. . .”
While it may be said that the relation of debtor and creditor existed between the bank and the depositor, the same situation would have existed had the deposit been an open account and subject to check. Had such been the case and had she given a check on her account, we do not believe it could have been said that the consideration was payment of a preexisting debt. We see no essential difference between using the certificate of deposit and drawing a check against the drawer’s account. In so far as the notes are concerned, the proof went no further than that the notes might not be fully collected — a finding they were valueless would not have been sustained by the evidence. There was a failure to prove lack of consideration.
The third contention is that appellee should have produced proof other than her deed to establish prima fade her possession of the real estate. Plaintiff’s petition alleges that she is the owner and in actual possession of the real estate. Defendants’ answer denied that allegation, and alleged a claim to possession. It was held in Stallard v. Stallard, 133 Kan. 512, 300 Pac. 1096, that the right to possession follows fee-simple title to the real estate unless there is a contract or relationship of some kind that provides otherwise. In Reitz v. Cooper, 123 Kan. 755, 256 Pac. 813, it was said:
“In an action to quiet title under our statute (R. S. 60-1801), where plaintiff alleges that he is in possession, the filing of a cross petition by defendant in which he alleges he is in possession, praying that his title be quieted, confers jurisdiction on a court to determine the question of title as between the parties and to grant relief to the party entitled thereto, irrespective of whether plaintiff or defendant'was in possession.” (Syl. ¶ 1.)
Further, plaintiff’s testimony was to the effect that she leased the land and put her tenant in possession of the land and he went to plowing. Both as a proposition of law and of fact the court was warranted in rendering judgment in plaintiff’s favor.
The last contention is that - the court erred in dismissing the bank as a party defendant, it being claimed that under the code a written instrument can always be reformed in an action in which it is sought to be enforced, citing Stewart v. Falkenberg, 82 Kan. 576, 109 Pac. 170, and Casten v. Kreipe, 125 Kan. 182, 264 Pac. 55. The cases cited do not determine the question before us. Here the plaintiff sought to quiet title to land, the defendants denied her title and sought to reform a deed to one not then a party to the suit, on account of the matters of which no allegation was made plaintiff had notice or knowledge at the time she acquired title, nor was any such proved. If the plaintiff was correct in her contention and should prevail, then appellants had no right of reformation of the deed made by them to the bank. In the absence of notice or knowledge by the plaintiff that prevented her from having judgment in her favor, the court would have committed error had it reformed the deed as appellants sought. For aught the record shows, either by way of pleading or proof, plaintiff was a bona fide holder of the title to the real estate and entitled to the possession thereof, and in getting a judicial determination to that effect, she did not have to have her suit encumbered with claims of the defendants against other parties, the determination of which could not affect the result as to her.
And finally, it may be said that such disputes as there were in the testimony were resolved in favor of the plaintiff, and are not open for our consideration.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The executor in this case appeals from the order of the district court overruling his motion to quash an execution in the hands of the sheriff and to set aside the levy thereof when it was issued by the clerk on a judgment rendered in the district court against the estate of the deceased without any lien being given on any land, after the land on which the execution was levied had been sold and conveyed by the executor with the approval and confirmation of the probate court, for the payment of debts of the estate, and after the plaintiff had filed and exhibited a copy of such judgment with the probate court and the probate court had allowed and classified the judgment-in the fifth class, from which order no appeal had been taken.
Appellee relies almost entirely upon R. S. 60-3126, which gives the judgment creditor a lien on the real estate of the debtor from the first day of the term at which the judgment is rendered. It is argued by appellee that by the action of the executor in asking the probate court for permission to sell the real estate for the payment of the debts of the estate, the real estate of the deceased becomes that of the judgment debtor, the estate, where the debt for which the judgment was rendered originated not during the life of the deceased, but during the settlement of the estate, and although there is nothing in the judgment making it a specific lien on any land, the statute above cited makes it a definite lien on all the land of the judgment debtor, the estate, that is offered for sale to pay the debts of the estate.
The novel and unusual feature about this case is that the judgment rendered in the district court was not based upon any act or contract of the deceased, but the action was to set aside a contract made by the executor with the plaintiffs for the sale and purchase of land to pay the debts of the estate. The purchasers at the sale, Uhl and wife, paid $1,000 cash to the executor and promised to pay the balance in a few months, which was never paid. Mrs. Uhl,, as guardian for her insane husband, and for herself, commenced this action in the district court June 2, 1931, against the executor and the estate to set aside this contract of purchase, and, on December 5, 1931, the court not only set the contract aside, but granted plaintiffs a judgment against the estate for $723.33. On the 29th of April, 1932, Mrs. Uhl filed a certified copy of the judgment in the probate court, and it was that day allowed by the probate court as a fifth-class claim against the estate. Other fifth-class claims were allowed both before and after that date. On September 21, 1932, the executor again petitioned the probate court for permission to sell some real estate for 'the purpose of paying debts of the estate, which petition was granted, sale of an eighty-acre tract was made to one J. N. Hedrick, sale approved, and executor’s deed executed and delivered, which deed was recorded on March 10, 1933. On July 5, 1933, plaintiffs caused an execution to. issue out of the district court to be levied upon this same eighty-acre tract that had been sold to Hedrick, and it was advertised to be sold on September 4, 1933, by the sheriff to satisfy this judgment.
Two days before such sale the executor filed this motion to quash the execution and set aside the levy, setting out many reasons, some of which are set out in the first part of this opinion. The court overruled the motion, but upon an appeal being taken by the executor, the court restrained the sheriff from selling the land during the pendency of the appeal.
No question is raised as to the district court being the proper tribunal in which to commence an action to set aside a contract, and in doing so a judgment for good cause could very properly be rendered against the defendant and in favor of the plaintiffs. The plaintiffs then followed the statutory plan of having the judgment allowed by the probate court as a claim against the estate and placed in one of the classes. (R. S. 1933 Supp. 22-707, 22-701.) R. S. 22-821 directs that deeds of executors made in pursuance of the statutory regulation prescribed in this article shall be received in all courts as presumptive evidence of the regularity of such proceedings and vest title in the purchaser in like manner as if conveyed by the deceased in his lifetime.
We are not here confronted with any attempt of the trial court to make the judgment a lien on the estate of the deceased. So the judgment is only a judgment against the estate and the executor as such. Appellee argues that R. S. 60-3126 makes any general judgment against the estate a lien upon all the real property of the estate, and particularly that property which the probate court permitted the executor to sell to satisfy the debts of the estate. We are not convinced by this reasoning, especially when the plaintiffs in effect waived any such priority, if they ever had it, under the statute last above cited, by affirmatively seeking a classification of the judgment in the probate court, and assented to its being placed in the fifth class with four other classifications of claims prior thereto by failing to appeal from such order of the probate court.
R. S. 22-819 states specifically that when a sale is' regularly made by an executor the deed shall convey to the purchaser all the right, title and interest the deceased had in the premises sold. Appellee distinguishes between debts of the deceased and debts of the estate, but cites no authority for the making of either a lien except the general judgment lien statute. In the case of O’Loughlin v. Overton, 68 Kan. 92, 74 Pac. 604, it was held:
“When administration of the estate of a deceased person resident in this state has been granted and the administrator has qualified and taken possession of its assets and is proceeding to administer the same under the direction of the probate court, a judgment of a district court against such administrator, sustaining an attachment of the goods of the estate in the hands of the administrator, and directing their sale and the application of the proceeds to the payment of a debt found due from the estate to the plaintiff, is void for want of jurisdiction, and may be set aside at any time on motion.” (Syl. ¶ 1.)
In the recent case of Parsons v. McCabe, 127 Kan. 847, 275 Pac. 173, it was said:
“A probate court is a court of record which has primary and complete jurisdiction over the estates of deceased persons, and its decisions rendered within its jurisdiction are as conclusive as judgments rendered by the district court.
“A decision of the probate court allowing a claim against the estate of a deceased person and placing it in a certain classification, if not appealed from, is a final adjudication binding upon the parties.” (Syl. ¶¶ 1, 2.)
“The doctrine is well settled that property in the hands of . . . executors and administrators ... is regarded as being in custodia legis, and cannot be reached by execution, in the absence of statutory authority.” (23 C. J. 357.)
"In the absence of a statute providing otherwise, a judgment against an executor or administrator is not a lien either on the lands of the estate or on those belonging to the representative individually.” (24 C. J. 894; see, also, 34 C. J. 572.)
We conclude that the judgment rendered by the district court without making it a specific lien was perfectly proper, and the allowance and classification of the same by the probate court at plaintiffs’ request was in pursuance of the statutory provisions, and conclusive if no appeal is taken. The district court lost jurisdiction when the matter was certified to the probate court and recognized there. The execution in this case was improperly issued, and the motion of the executor to quash it and set aside the levy should have been sustained.
The judgment is reversed with directions to quash the execution and set aside the levy.
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The opinion of the court was delivered by
McFarland, J.:
This was originally an action for possession of premises and for rent, brought by the landlord, Chelsea Plaza Homes, against the tenant, Joyce Moore. Plaintiff-landlord dismissed its suit the day of trial. Defendant-tenant proceeded to trial on her counterclaim, alleging violation of the Residential Landlord and Tenant Act [RLTA] (K.S.A. 58-2540 et seq.) and the Consumer Protection Act [CPA] (K.S.A. 50-623 et seq.). The trial court entered judgment for the landlord on the counterclaim and the tenant appeals.
In January, 1977, Ms. Moore entered into an apartment rental agreement with the landlord. The monthly rental was $169.00, to be paid on or before the 6th day of the month. The lease provided a $10.00 charge would be required for late payments.
In November, 1977, the tenant failed to pay her rent on time and received an eviction notice. On November 14, after receiving the notice, Ms. Moore talked to the landlord’s resident manager and explained she was expecting an emergency Aid to Dependent Children check and displayed documents to that effect. On November 23, 1977, the forcible detainer action herein was commenced. On November 25, 1977, Ms. Moore returned to the apartment office to pay the rent plus the $10.00 late charge. The resident manager accepted the payment but informed Ms. Moore that the action had already been filed and the manager did not know if the action could be stopped. Subsequently, Ms. Moore was advised she would have to pay an additional $55.00. At trial this was denominated as a novation fee by the landlord and attorneys’ fees-court costs by the tenant. By agreement it was to be paid at $10.00 per month and two such payments had been made by the time of trial.
The counterclaim sought $2,000 damages pursuant to K.S.A. 50-636 (now 1978 Supp.) (Consumer Protection Act) for each of three alleged violations of the Residential Landlord and Tenant Act, as well as attorneys’ fees. The three alleged violations and the relevant RLTA statutes are as follows:
1. Paragraph 8 of the lease agreement which provided:
“TENANT agrees to permit the LANDLORD to enter at all reasonable times to view the premises and make repairs, alterations, or perform such services, as LANDLORD may deem necessary or proper.” (K.S.A. 58-2547[fc] and 58-2557.)
2. Paragraph (d) of the lease agreement which provided:
“If default be made in the payment of rent after the same is due, or upon the breach of any of the covenants and agreements herein contained, the LANDLORD shall have the right to enter and take possession of the leased premises, and the TENANT agrees to deliver same without process of law, and this LEASE AGREEMENT, at the option of the LANDLORD, shall terminate, but for this cause the obligation of the TENANT to pay monies due to the LANDLORD shall not cease, and the TENANT shall be liable for any loss or damage to the LANDLORD for TENANT’S failure to comply with the terms hereof.” (K.S.A. 58-2547[a][l] and 58-2569.)
3. Payment of landlord’s attorneys’ fees under paragraph (d) above. (K.S.A. 58-2547[o][3].)
Each of the above alleged violations of the Residential Landlord and Tenant Act was averred to be a deceptive practice proscribed by K.S.A. 50-626(b)(8) of the Consumer Protection Act.
At the conclusion of the trial the court took the matter under advisement and subsequently issued its memorandum opinion, concluding that the $55.00 was a proper charge and that no violation of the CPA was proven.
On appeal, the defendant-tenant raises the following two points:
I. Did the court err in finding that plaintiff’s use of the rental agreement was not a violation of the Kansas Consumer Protection Act?
II. Did the court err in holding that the $55.00 novation fee was enforceable for the time and expense of reinstating the existing rental agreement?
Before proceeding to the points specifically raised on appeal, the court must resolve a significant issue inherent in the case. It is clear that the counterclaim is the result of a hybridization of the Residential Landlord and Tenant Act and the Consumer Protection Act. Specific alleged violations of the RLTA are used as the deceptive practices of the CPA. The reason for this is clear. The RLTA permits only the recovery of actual damages by a tenant, and those only when the prohibited provisions are deliberately used by the landlord (K.S.A. 58-2547); whereas, the CPA, for deceptive acts or practices (K.S.A. 50-626[fe][8]), permits recovery of actual damages or $2000, whichever is greater, plus reasonable attorneys’ fees (K.S.A. 50-634 and 636 [now 1978 Supp.]). We must initially determine whether the Residential Landlord and Tenant Act is a complete and specific act which takes precedence over the Consumer Protection Act in the area to which it pertains.
It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. Garden City Educators’Ass'n v. Vance, 224 Kan. 732, 736, 585 P.2d 1057 (1978); State, ex rel., v. Throckmorton, 169 Kan. 481, 486, 219 P.2d 413 (1950).
The Consumer Protection Act, in its definitions statute, K.S.A. 50-624, provides in relevant part:
“(b) ‘Consumer’ means an individual who seeks or acquires property or services for personal, family, household, business or agricultural purposes.
“(c) ‘Consumer transaction’ means a sale, lease, assignment or other disposition for value of property or services within this state (except insurance contracts and securities regulated under federal or state law) to a consumer or a solicitation by a supplier with respect to any of these dispositions.
“(g) ‘Property’ includes real estate, goods, and intangible personal property.
“(i) ‘Supplier’ means a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in, or enforces consumer transactions, whether or not he or she deals directly with the consumer.”
The above language is clearly broad enough to include all leases of real estate.
The Residential Landlord and Tenant Act, in its definitions statute, K.S.A; 58-2543, defines action, building and housing codes, dwelling unit, good faith, landlord, organization, owner, person, premises, rent, rental agreement, roomer, security deposit, single family residence, and tenant. K.S.A. 58-2541 designates “arrangements” not subject to the RLTA (inapplicable here).
In Clark v. Walker, 225 Kan. 359, 590 P.2d 1043 (1979), this court considered the purpose of the RLTA and stated:
“At the outset it would be helpful to consider the Residential Landlord and Tenant Act as a whole and the legislative purpose of enacting it. The legislative history and background for the act is contained in the Report of the Special Committee on Consumer Protection to the 1974 legislature pertaining to proposal No. 17 governing landlord-tenant relations. In its report, the special committee points out that the subject of study was ‘the need for additional legislation governing landlord-tenant relations.’ In general, existing Kansas statutes in this area related to the duration and termination of various tenancies and forcible detainer actions. At the time of the report, there was little or no statutory law in Kansas governing the more substantive aspects of landlord-tenant relationships. The report noted that the Uniform Residential Landlord-Tenant Act was approved by the National Conference of Commissioners on Uniform State Laws at its August 1972, annual meeting. The committee then makes the following conclusions and recommendations:
“ ‘Upon analysis of the information before the Committee, it became apparent that the antiquated common law concepts and absence of statutory law creates problems and works to the detriment of both landlords and tenants who may very well be operating on different premises. It is the opinion of the Committee that there is a need to statutorily state the various obligations and other elements of tenancy so as to adequately express the modern day concepts of landlord-tenant relations. It should not be made the responsibility of the courts to develop these concepts. Therefore, the Committee recommends that the 1974 legislature enact a comprehensive landlord-tenant code which would establish a single standard of reference for both landlords and tenants.’ (17-3.)
“The Kansas act was enacted in 1975. In its final form, it was based in part on the Uniform Residential Landlord-Tenant Act, but with some modifications. In the act, the legislature set forth the obligations, rights, and remedies of both landlords and tenants. . . . [I]t is quite evident from the provisions of the law itself and the legislative history that the legislature considered the concerns and recommendations of both landlords and tenants in drafting a law which attempts to strike a reasonable balance between the positions advocated by the two groups. See Brand, The New Residential Landlord and Tenant Act, 44 J.B.A.K. 227 (1975). Under the act, both landlords and tenants gained certain advantages and suffered certain disadvantages.” pp. 363-364.
The Consumer Protection Act’s purpose is stated in K.S.A. 50-623 as follows:
“This act shall be construed liberally to promote the following policies:
“(a) To simplify, clarify and modernize the law governing consumer transactions;
“(b) to protect consumers from suppliers who commit deceptive and unconscionable practices;
“(c) to protect consumers from unbargained for warranty disclaimers; and
“(d) to provide consumers with a three-day cancellation period for door-to-door sales.”
Clearly, the Consumer Protection Act covers a very broad area of transactions; whereas, the Residential Landlord and Tenant Act covers one very specific small area of transactions, and is complete within itself for that area. We therefore must conclude that for all transactions within its purview the Residential Landlord and Tenant Act controls and preempts the field. The attempted hybridization of the two acts herein has resulted in a sterile hybrid which is not viable, let alone capable of reproducing itself.
The tenant-appellant’s first claim of error is: Did the court err in finding that plaintiff’s use of the rental agreement was not a violation of the Kansas Consumer Protection Act?
The trial court did not hold the CPA to be inapplicable to the case herein, but held no violation of the act had been established. The trial court specifically found and concluded:
“5. K.S.A. 50-623 provides for the purpose and construction of the Kansas Consumer Protection Act. A careful study of this statute in light of the evidence presented in the case leads me to the conclusion that plaintiff’s use of the rental agreement admitted into evidence was not a violation of said act.
“6. Certain provisions of the rental agreement (Defendant’s exhibit 1), might fall within the prohibitions of K.S.A. 58-2547(a). However, there is no evidence that any of such prohibitions were in fact enforced by plaintiff nor is there any evidence that plaintiff deliberately used such rental agreement with knowledge that certain provisions were prohibited by the Residential Landlord and Tenant Act. Furthermore, there is no evidence that defendant tenant sustained any actual damages as a result thereof.”
The judgment of a trial court is to be upheld if it is correct, even though the trial court may have relied upon a wrong ground or assigned an erroneous reason for its decision. Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, Syl. ¶ 7, 582 P.2d 1111 (1978).
In view of our determination that the Consumer Protection Act is inapplicable to the case herein, the trial court did not err in determining there was no violation of the act.
The tenant-appellant’s second claim of error is: Did the court err in holding that the $55.00 novation fee was enforceable for the time and expense of reinstating the existing rental agreement?
The trial court specifically found and concluded:
“1. Defendant and plaintiff’s agent on November 25, 1977 entered into an agreement whereby plaintiff, in consideration of the payment of $55.00 and the rent then due and owing by defendant, agreed to cease legal proceedings to evict defendant from the premises described in the rental agreement.
“2. The $55.00 described in the evidence was not for attorneys fees and costs incurred by plaintiff in filing this action but was an amount calculated to reimburse plaintiff for the time and expense of reinstating the existing rental agreement that had been breached by defendant.
“3. The amount of $55.00 was established by plaintiff based on their vast experience in leasing rental property in the Kansas City Metropolitan Area.
“4. The defendant knowing she was delinquent in her rental payments freely and voluntarily agreed on November 25, 1977 to pay plaintiff $55.00 additional charge on a monthly basis in order to reinstate the rental agreement and avoid the cost and inconvenience of moving or being evicted.”
K.S.A. 58-2544 of the RLTA provides:
“(d) If the court, as a matter of law, finds: (1) A rental agreement or any provision thereof .was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; or
“(2) a settlement in which a party waives or agrees to forego a claim or right under this act or under a rental agreement was unconscionable at the time it was made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision or limit the application of any unconscionable provision to avoid any unconscionable result.
“(b) If unconscionability is put into issue by a party or by the court upon its own motion, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination.”
Inherent in the trial court’s findings above stated was the finding that the payment of $55.00 was not unconscionable as contemplated by K.S.A. 58-2544. The record has been reviewed and these findings are supported by substantial competent evidence and, accordingly, are conclusive on appeal. McKnight v. St. Francis Hosp. & School of Nursing, 224 Kan. 632, 585 P.2d 984 (1978).
All points specifically raised, and of necessity before this court, have been determined and no error is shown.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Harvey, J.:
The appellant, Hugh Hooper, was charged with the murder of Frank Lahey on August 24, 1931. At the trial the fact that defendant shot and killed Lahey was not controverted. The defense interposed was justifiable homicide — self-defense. Defendant was found guilty of manslaughter in the first degree. He has appealed, and contends that the court erred: (1) In overruling his motion for a change of venue; (2) in overruling his challenge to the array of jurors; (3) in overruling his challenges to certain jurors for cause; (4) in rulings on the admission and exclusion of evidence; (5) in refusing his request for copy of transcript of testimony taken before the coroner's jury; (6) in refusing to give instructions requested; (7) in instructions given; and (8) in overruling his motion for a new trial.
The record discloses facts which may be stated as follows: About 1918 appellant moved into the southeastern part of Grant county with his family, consisting of his wife and one daughter. He purchased 560 acres of farm and pasture land and began running a small herd of cattle. By the time of the homicide in question he had increased his land holdings to 800 acres, and in addition to that leased land which he operated. In the summer of 1931 he and one C. E. Workman together operated a pasture of 1,480 acres, the land in which they owned or leased. It consisted of the east half of section 22, all of section 23, the north half and the northwest quarter of the southwest quarter of section 26, and the east half of the east half of section 27, all in township 30 S., range 35 W., and which was inclosed as one pasture. The Cimarron river enters this pasture near the southwest corner and flows northward into the southeast corner of section 22, thence northeast, east and southeastward, leaving the pasture near the southeast corner of section 23. The north fork of the Cimarron river enters the pasture from the west, a little south of the center of section 22, and flows southeastward into the Cimarron river in the southwest quarter of section 23. Hooper had built a small house, frequently spoken of in the evidence as the “white house,” on the southwest quarter of the southeast quarter of section 22, about 125 yards from the west line and about 300 yards from the south line of that forty-acre tract. East of the white house a short distance was a windmill, and to the northeast of the white house, about 75 yards, was a water tank. No one was living at these premises at the time of the homicide. Workman lived on the northwest quarter of section 24, directly east of the northeast quarter of this pasture. Hooper lived on the southwest quarter of section 27, about three-fourths of a mile west of the southwest corner of the pasture and a little more than one mile south and about a half mile west of the white house above mentioned. Directly south of the forty acres on which the white house was situated was an eighty- acre tract in cultivation, one-half mile long north and south and one-fourth of a mile wide, fenced on all its sides with a four-wire fence; and directly west of the forty acres on which the white house was situated was a field, also in cultivation. Hooper farmed both of these tracts and was having them drilled to rye at the time of the homicide.
Directly south and to the southwest of the land owned and operated by Hooper the several members of the Lahey family owned and operated a considerable acreage of farm and pasture land. The elder member of this family, usually spoken of in the evidence as “Uncle Jimmie” Lahey, settled in that vicinity about forty years ago. He had a family of at least two sons, Jimmie Lahey and Frank Lahey, and two daughters, Mrs. W. R. (Ted) Rowland and Mrs. J. H. Gray; all of whom were married and had homes within a few miles of each other. “Uncle Jimmie” Lahey lived about one mile south of Hooper. Frank Lahey lived a mile west and a half mile south of Hooper, and Ted Rowland lived a mile east and a mile south of Hooper. From where the Cimarron river enters the Hooper-Workman pasture, following it upstream, its course is to the southwest, west, then to the northwest; so that Hooper lived north of the Cimarron river and the Laheys and Rowland south of it. Perhaps Frank Lahey was born at his father’s place, above mentioned;'at any rate he had lived in that vicinity practically all his life. His pasture land joined the Hooper-Workman pasture, above described, directly on the south.
For as long as five or six years prior to the homicide Hooper and Frank Lahey had trouble. ' It began over the fences between the pastures. Hooper testified — and it is the only evidence on the subject — that on a number of occasions Lahey let the fence down, or ■left the gates open, and permitted his cattle to come into Hooper’s pasture. He went to see Lahey about that. Hot words were exchanged. Hooper struck Lahey with a tug, which was a chain, or part chain. For this Lahey had Hooper arrested, and Hooper paid a fine and was also put under, a peace bond. Later Hooper complained to the officers that Lahey was operating a still and caused his arrest. A trial of that case resulted in Lahey’s acquittal. Soon after that Lahey, who was on horseback, stopped Hooper, who was in an automobile without a top, on the road. There were hot words. Lahey cursed Hooper and, among other things, said: “You turn me in and I’ll get even with you,” and struck Hooper with a quirt and rode away. At another time the parties met at the stockyards at Satanta, where they were delivering hogs. They fought, and onlookers separated them. There is a conflict in the evidence as to which one started the fighting on that occasion. In May, 193,1, they had trouble about a certain forty-acre tract of pasture. It seems Hooper owned or had leased land which included this forty-acre tract inside of Lahey’s pasture, and apparently there had been some understanding that Lahey might use it if he paid rent, which he had not done for two years. Hooper changed the fences so as to include it in his pasture. Lahey and his brother-in-law, Ted Rowland, went to Workman, who was interested with Hooper in his pasture. Workman and Rowland had about agreed on a plan by which the forty acres would continue to be used by Lahey. Workman called Hooper, who was not far away, and told him of the agreement they were about to make. Hooper objected to it. Lahey then got into the conversation and he and Hooper used harsh words toward each other. Rowland told Lahey to get on his horse and ride away. Lahey got on his horse; he was angry, and attempted to spur his horse onto Hooper and perhaps the other men there. Among other things he said to Hooper: “I’ll mash your head in.” Rowland got on his horse and he and Lahey rode away. It appears that until about 1925 Hooper and Frank Lahey had exchanged the use of farm implements, but in that year, on one occasion, Hooper went to Lahey’s place to get implements Lahey had borrowed and at that time he told Lahey he was through with him and wanted him to stay off his place. There is evidence that for several years prior to the homicide Lahey had carried a pistol, or revolver of some kind, at least part of the time. He talked with several persons about his difficulties with Hooper. To some he said he would get even with Hooper. To one he said: “If I meet that old boy (Hooper) out there, there will be some lead flying.” On another occasion he said: “I am carrying this gun for Hugh" Hooper, and sometime I am going to use it.” To another he is said to have remarked: “Me and Hugh Hooper have had trouble and that is the reason -1 am carrying the gun, and if things ever turn out right I am going to kill the dirty,' yellow son-of-a-bitch.” To another he said that Hooper had turned him in for running a still, and said: “I am going to kill him if he ever crosses my path.” Lahey had some fence to build near the Hooper land. He went to one Ragan to get him to build it, and explained that Ragan was on friendly terms with Hooper and could build it without trouble, while if he tried to build it he might have trouble with Hooper. These talks and threats of Lahey came to be known by Hooper from time to time. Throughout this time Hooper was also talking about Lahey, and on at least two or three occasions Hooper had said he would kill Lahey if he came upon Hooper’s land. Lahey had been informed of these statements of Hooper.
In the summer of 1931 Hooper and Workman together looked after the 1,480-acre pasture, previously described, and the cattle therein, and one or both of them rode the fences every day. On the Saturday before the homicide-, which occurred on Monday, Workman, while riding through the pasture, noticed one of Hooper’s steers was sick. On the morning of the homicide Workman went into the pasture to ride the fences and to look for the sick steer. He entered the pasture near the southeast corner of section 23 and rode north, not far from the east fence, to within about a quarter of a mile of the northeast corner of the pasture. There he was met by Hooper, who had ridden across the pasture from the southwest. It was then about 10 o’clock. They talked a few minutes and both started to look for the sick steer. They rode in a southwesterly direction toward the place where the north fork of the Cimarron empties into the Cimarron river. There the land was rolling and the grass and weeds high in the low places. When they neared this point they saw two men on horseback south or southeast from them, perhaps 200 yards away, who were riding in an easterly or northeasterly direction. They testified they did not recognize the men or the horses. The men proved to be Frank Lahey and Archie Wyatt. Lahey was wearing overalls and a Stetson hat, such as cowmen frequently wear. Wyatt was dressed in white — white shirt, white pants, oxford shoes and a straw hat. He was riding a larger horse than was Lahey and was on the north and northwest side of him. The two parties did not speak or greet each other. Early that spring one of Lahey’s steers, a mottled-faced yearling, got out of his pasture into the Hooper-Workman pasture and had been turned back twice by Workman or Hooper. On Sunday, the day before the homicide, there had been a-picnic and dinner at Uncle Jimmie Lahey’s attended by his relatives and friends, including Frank Lahey, and which was also attended by Archie Wyatt. He was a young man who worked as a farm hand. His father lived in Colorado, which place he called his home, but he had worked as a farm hand for various persons in southwestern Kansas and in Oklahoma and Texas. He had worked through harvest four years for J. H. Gray, the son-in-law of Uncle Jimmie and brother-in-law of Frank Lahey. He had been working for Gray, but had finished the day before this picnic. On the day of the picnic Frank Lahey told Wyatt that he wanted to go the next day to look for a steer that was out of his pasture and told Wyatt he would give him a dollar if he would go with him to help get the steer, and Wyatt agreed to go. Wyatt stayed Sunday night at Uncle Jimmie’s, and the next morning, about 9:30 o’clock, started to walk to Frank Lahey’s. On the way he met Frank Lahey riding a horse and leading another without a saddle. He got on that horse and they rode to Uncle Jimmie’s, where they got a saddle and rode on to Ted Rowland’s. Rowland had a horse he had been keeping, which he desired to have ridden. Frank Lahey had the horse for some time, about a year before, breaking him to ride, but Rowland thought the horse was not thoroughly broken and asked Frank Lahey to ride him that day. He did so, letting Wyatt take the horse he had been riding. Wyatt carried no fire arms, and did not know Frank Lahey was armed. From Rowland’s place Frank Lahey and Wyatt had gone north through a gate or fence into the Hooper-Workman pasture and had ridden north and northeast toward the Cimarron river and through one or two small bunches of cattle grazing near the' river, when they were seen and passed by Hooper and Workman, as above stated. Lahey told Wyatt the men were Mr. Hooper and Mr. Workman, and also said: “There is one of those fellows and me that don’t get along well.” Wyatt replied to Lahey: “We can just get our steer and get back out of here.” They continued to ride in a northeasterly direction up to the northeastern part of the pasture, then west and southwest to a point about 150 yards east of the windmill near the white house on the southwest quarter of the southeast quarter of section 22, where there was a little hill, or knoll, covered with soapweed. They met Workman, who had reached that place just before they did. When Workman and Hooper saw Lahey and Wyatt in the pasture and passed about 200 yards from them without recognizing them, as they testified, Hooper, without saying where he was going, or why, or when he would be back, if at all, rode off to the southwest. Up to that time Workman had seen no' gun on Hooper’s saddle. Hooper had a man, Jack McKeegan, working for him, drilling rye in the eighty-acre field south of the forty acres on which the white house was situated. This forty acres was separated from the rye field by an east-and-west fence a quarter of a mile long. At the northeast corner of the rye field the fence turned south for a mile. At the northwest corner of the rye field, being the southwest corner of the forty acres on which the white house is situated, there was a gate leading into the pasture, also a gate leading into the field west of the forty acres on which the white house was situated. Nearly half a mile south of this corner, in the fence on the west side of the rye field, first described, was a gate leading into the field from the west. Mc-Keegan had finished drilling this eighty-acre rye field south of the forty acres on which the white house was situated and had taken his team and drill into the field west of the forty acres on which the white house was situated and was there drilling rye. When Lahey and Wyatt met Workman at the little knoll about 150 yards east of the windmill on the forty acres on which the white house was situated Frank Lahey spoke pleasantly to Workman, they exchanged greetings, and Lahey asked Workman “if he had seen anything of that steer.” Workman knew what steer was meant, and replied that he had not seen the steer since he had last seen Lahey, or words to that effect. Lahey had inquired of Workman about the steer sometime in June, and perhaps once later. Wyatt said something to Workman about his having nice cattle there in the pasture, and Workman replied: “Yes, and quite a bunch of them.” • After the parties talked a short time — not more than five minutes — Lahey remarked to Wyatt that “We had as well be going,” or “We had better be going.” It was then about 12:30 o’clock. Lahey and Wyatt started to ride off to the southeast toward the place where they had entered the pasture in the morning. This took them near the corner of the fence at the northeast corner of the eighty-acre rye field, which would be at the southeast corner of the forty acres on which the white house was situated.
The story of the homicide is best told by summarizing as follows the testimony of the three witnesses who were present: Wyatt testified: Immediately after we left Workman I saw Hooper come through the gate in the fence at the northwest corner of the eighty-acre rye field and get on his horse and .ride east in a gallop along the north side of the fence. When he was about half way along that fence I saw he was carrying a rifle in his right' hand. Lahey said to Wyatt: “It looks like there is going to be trouble;” and a little later said: “It may be his time or mine to go, and if it is mine tell the rest of the kids to remember Della.” Della was his wife. When Wyatt and Lahey were within about thirty or forty yards of the northwest fence corner of the eighty-acre rye field Lahey told Wyatt to ride out and see if he could stop Hooper, and Lahey spurred his horse and rode on southeast of the corner. Wyatt rode to the southwest to within ten yards of Hooper, who was then .about thirty or forty yards from the corner. Wyatt said to Hooper: “What does this mean?” Hooper did not reply to Wyatt, but ■started to dismount and called to Lahey: “Get down from there, you yellow son-of-a-bitch; here’s where we have it out.” When Hooper dismounted he turned his horse loose. Wyatt was then northwest of Lahey and northeast of Hooper and facing toward Hooper. He did not see Lahey dismount, nor how he stood while the shooting was going on, but did see him standing on the east side , of his horse, which was facing south, just before the shooting started.- Lahey was then about fifteen or twenty yards southeast of the fence corner. Wyatt heard the first shot come from Lahey’s direction. ■ Then he heard several shots in a few seconds, but could not say how many were fired by each gun. Both Lahey and Hooper were shooting. When the shooting started Wyatt’s horse became difficult to manage. When the shooting stopped Hooper came to Wyatt and said: “You heard him shoot first, didn’t you?” Wyatt replied in the affirmative. Just then Mr. Workman rode up and Hooper had Wyatt repeat to Workman the statement to the effect that Lahey fired first. Wyatt then stated that he didn’t want “to be into this in any way,” and Hooper told him then to just go on like he didn’t know anything .about it. Hooper asked Workman to go over and see how Lahey looked. Workman rode over to where Lahey lay on the ground, about thirty or forty yards southeast of the fence corner, and came back and reported that Lahey was dead. Soon after that Wyatt went to “Uncle Jimmie” Lahey’s, where he saw Ted Rowland and told what had happened.
Mr. Workman testified: -After Lahey and Wyatt talked with him, and Lahey had said: “Let’s go,” or “We better be going,” they rode off to the south and a little to the east. When they were about fifty yards away, riding side by side in a gallop, he noticed Hooper about fifty yards east of the gate at' the west end of the fence and fifty or sixty feet north of the fence, riding in a dog trot southeast -on the north side of the fence. Hooper and Lahey came to within about thirty or forty yards of each other, right at the fence corner, Hooper about thirty yards east and Lahey fifteen to twenty feet south of the corner. He heard shots fired by Lahey and by Hooper; Lahey shot twice before Hooper shot. He was then eighty to one hundred yards north of them, and perhaps sixty yards north of Wyatt. He had ridden down there in a gallop from where he had talked with Lahey and Wyatt because he knew Hooper and Lahey had had trouble — both of them had told him about it. He first noticed Hooper had a gun in his hand when he jumped off his horse; it -was a rifle. He saw Lahey jump from his horse, unbutton his overalls and take a gun out from underneath them. Lahey was then standing on the east side of his horse, facing west. The horse was then headed south. Lahey held the bridle reins in his left hand, but held the gun in both hands, across his horse in front of the saddle, and fired twice in the direction of Hooper. At that time the witness was not looking at Hooper. Just after that he saw Hooper standing on the ground with his rifle in his right hand, saw him raise it and fire three times toward Lahey. There was no noticeable period of time between the shots fired by Lahey and those fired by Hooper; it was “just right now.” The witness heard no conversation between Hooper and Lahey prior to the shooting. He thinks if there had been such a conversation he could have heard it, since he was only eighty to one hundred yards away. At the second shot fired by Hooper, Lahey’s horse began plunging and jerking Lahey, who staggered, possibly from the jerking. Lahey fell twenty or thirty yards southeast from where he was when the shooting started; the horse had jerked him. After the shooting the witness rode tó where Hooper and Wyatt were. Hooper asked Wyatt if he had seen what was done. Wyatt answered that he had, and said to Hooper: “He shot at you twice before you shot.”' Hooper said to witness: “Did you hear this, Bert?” and the witness answered that he did. Hooper asked him to ride over and see Lahey. He did so and came back and reported to Hooper that Lahey was dead. Then all three of them went over near Lahey. Wyatt said: “I don’t want in on this at all,” and Hooper replied: “They will sure want you.” Wyatt then asked how he could get out of the pasture, and Hooper told him to “go right south the way you came in.” When riding toward the fence corner Lahey had spurred his horse, and when he passed the fence corner the horse was going about as fast as he could. Wyatt was thirty yards behind. Lahey dismounted about twenty feet south of the fence corner. Hooper was off his horse when Lahey fired. After Hooper’s second shot Lahey’s horse lunged and jumped. Lahey had his right hand across his left arm trying to shoot. His horse was south of him. Hooper’s horse came up to Workman. Lahey’s horse got loose when Lahey fell and went off east near the river, where it was found dead a few days later. The witness stayed by Lahey’s body until the coroner came that afternoon. At the time of the shooting witness heard Lahey say in a loud voice: “You get him; you get him.'”
Hugh Hooper, defendant, testified: The morning of the homicide he started his hired man McKeegan to drilling rye in the eighty-acre field south of the forty acres on which the white house was situated, then rode to the pasture, met Workman near the northeast corner of the pasture; together they started to find the steer that had been sick. They rode leisurely southwest. As they approached the river they saw south of them, about a quarter of a mile in the pasture, two strange men, one dressed in white, riding east, perhaps a little northeast; passed within two or three hundred yards of them; did not recognize the men or their horses; they did not speak. The grass and weeds were high in the low places. Workman and he separated, Workman going northwest and he southwest, looking for the sick steer. He went along the north side of the rye field; noticed McKeegan had finished drilling in that field and had gone to the field west of the white house, through two gates which witness knew he could not close, as he was working young mules. Witness went and closed the gates, one on the west side of the rye field and two at the corner near the west end of the fence separating the rye field from the forty-acre tract on which the white house was situated. As he closed the gates at the corner he noticed three men on horses at a point east of the white house; one he recognized as Workman; saw the man in white and another man, neither of whom he knew, and started to ride to them to see who they were and what their business was. He had gone about fifty yards toward them when the man in white and the man with him started to ride south; he then directed his course southeast toward the eighty-rod fence on the north side of the rye field; he wanted to find out who those men were; he had known Frank Lahey thirteen years and knew he rode sitting erect in the saddle; the man not dressed in white rode slumped over and crouched forward in the saddle. Witness spurred his horse to a faster gait. About this time the man in dark clothing, who proved to be Frank Lahey, spurred his horse and rode ahead of the man dressed in white,, so as to be about thirty-five yards ahead by the time Lahey got to the corner. The man in white stopped. When witness was about seventy-five yards from the fence corner he recognized Lahey. Lahey rode south of the fence corner about thirty or forty feet, jerked his horse to a standstill, jumped off on the east side, reached in his clothing and pulled out a gun. The witness dismounted, walked around in front of his horse and took his rifle out of the cinch straps of his saddle, where he- carried it, butt forward, under the right fender. By this time Lahey had fired toward him twice, holding his gun in both hands over the withers of his horse. Witness was on the ground when Lahey fired. Witness believed himself to be in imminent danger; that Lahey was trying to kill him-. He then started shooting, and fired three times. He thinks the first shot did not take effect. When he shot the second time Lahey’s horse jumped and began to run around in front of Lahey, who held the bridle reins in his left hand trying to hold his horse, which was jumping, and was holding his gun over his left arm trying to aim at witness; the horse was no longer between Lahey and witness; Lahey was crouched over aiming at witness when he fired the third shot. This all happened pretty quickly, “a matter of a few seconds.’’ While the shots were being fired Wyatt’s horse was excited, lunging and jumping about thirty-five or forty yards northeast of witness. Wyatt had said nothing to witness just before the shooting; witness did not take-the gun out of the saddle straps before he got off his horse, which was the first time he had taken it from his saddle that morning. Witness did not say to Lahey: “You yellow son-of-a-bitch, get down here and we will shoot it out;” he used no language at all; “there wasn’t a word spoke.” He was asked: “Were you in the habit of carrying this rifle in your saddle when you went out?” He answered: “Well, when I carried it on my saddle most of the time', a good deal of .the time, I put it on there.” ' .
Jack McKeegan was working for Mr. Hooper as a farm hand. On the day of the homicide he was drilling rye with a team of young mules in the field south of the forty acres on which the white house was situated. He finished drilling that field about 10 o’clock in the morning, drove through the gate, without closing it, at the northwest corner of the field, and began drilling in the field west of the white house. While working in that field he saw Hooper ride from the pasture and close the gate near the south end on the west side of the first-mentioned rye field; also saw him close the gates at the northwest corner of that rye field and ride into the pasture and start toward the three men on horses about 150 yards east of the white house. He saw two of those men start to ride south in a gallop, and as they neared the fence corner one of them rode out in the lead. He saw Hooper ride at a trot east along the north side of the fence. He was too far away to hear any shooting, or anything that was said, and did not know of the homicide until he went in to dinner and Hooper told him.
The distance which Lahey traveled from the knoll, where he talked with Workman, to the fence corner where the shooting occurred, was measured to be 758 feet. The distance Hooper traveled from the gate at the northwest corner of the rye field to the corner where the shooting occurred was 1,279 feet. Hence, Hooper necessarily traveled faster than Lahey, whose horse part of the time was on the run.
On the afternoon of the shooting Workman pointed out to a deputy sheriff where the men stood while shooting. The officer picked up three empty 25-20 rifle shells at the place he was told Hooper stood, and two empty .32 automatic pistol shells and one loaded shell indented by the firing pin of the revolver at the place where he was told Lahey stood. From all the testimony it appears Lahey fired twice and tried to fire the third time, but the shell did not explode, and that Hooper fired three times, the third shell striking and killing Lahey.
There was evidence on defendant’s behalf that Hooper had a good general reputation as a peaceful, law-abiding citizen, and that Frank Lahey had the general reputation of being quarrelsome and of fighting, especially if he were drinking, as he sometimes was. However, it was Hooper who was fined and put under a peace bond for fighting Lahey, and there is no evidence that either of them ever had any trouble or fights with anyone else.
Soon after the shooting Hooper went home. That evening he went to the county seat and told the sheriff he had shot and killed Lahey. He was placed in jail until he gave bond, which he did in a few days. He told the deputy sheriff where his rifle was, at his home, and the officer went there and got the gun — a 25-20 Stevens repeating rifle. Soon after noon on the day of the homicide the coroner, having learned of the shooting, impaneled a coroner’s jury and went to the scene of the shooting and started to hold a coroner’s inquest. The county attorney was away from home, but a Mr. Wesley, who had formerly been county attorney, went with the coroner and the jury. He asked Carrie Hollingsworth, stenographer in the law office of Mr. Stubbs, who was then in Colorado, to go out there and take stenographic notes of the testimony. The coroner’s jury assembled at the scene of the shooting and examined the body of Frank Lahey, which was still lying where it fell. His pistol, a .32 automatic, was a few feet from him. Workman, Wyatt, and perhaps others, were interrogated by Wesley, and gave testimony before the coroner’s jury. Miss Hollingsworth took stenographic notes of this testimony. After the two witnesses had testified to the cause of death of Frank Lahey the coroner adjourned the inquest to meet at the county seat the next morning. By that time the coroner had concluded there was no question about the cause of death of Frank Lahey and no necessity of completing the coroner’s inquest, and it was adjourned without the coroner’s jury making any finding. The only record made by the coroner consisted of notations of what he did.
Directly after the hearing that afternoon before the coroner’s jury the body of Frank Lahey was taken to a mortuary, where an autopsy was held, which disclosed that a bullet had entered his back between the eleventh and twelfth ribs about two inches to the left of the center of the spinal column and was lodged in the top of the fourth rib on the interior of the chest wall in front, a little to the right of the center of the chest, and in its course had cut the abdominal aorta, causing death. Thereafter, in due course, Hooper was arrested, charged with the murder of Lahey. The case was set for trial in March, 1932, at which time defendant filed a motion for a change of venue on account of the prejudice of the inhabitants of the county. On a hearing of that motion it was denied. Owing to the illness of defendant’s leading counsel the trial was continued a time or two and it was finally held in the latter part of June, 1932, with the result previously stated.
Turning now to the questions argued on this appeal. Appellant contends that the court erred in refusing a change of venue. The application was made under R. S. 62-1318 to 62-1321. Affidavits of twenty-five residents of Grant county and sixteen of Haskell county were filed on behalf of defendant, stating in general terms that the Lahey family had resided in that part of the country for many years and had many members by blood or marriage situated in various parts of Grant county; that the family was influential and had many friends; that the case had been much discussed, and affiants expressed the view that an impartial jury could not be selected in the county. Twenty-seven counter affidavits were presented on the part of the state from various citizens of Grant county which set forth affiants’ means of knowledge and that they knew of no prejudice or ill-feeling against Hooper in their respective vicinities; that while the case had been talked to some extent detailed facts and circumstances of the homicide were not generally known, and affiants expressed the view that fair and impartial jurors could be obtained. The court, after considering the motion and the evidence in support and opposition thereof, overruled the same. The matter, of course, was tried to the court. The well-established rule is that before a change of venue to another county can be granted it must affirmatively appear that such prejudice exists as will be reasonably certain to prevent a fair trial. (State v. Parmenter, 70 Kan. 513, 516, 79 Pac. 123; State v. Bassnett, 80 Kan. 392, 102 Pac. 461.) The ruling of the court upon this question will not be disturbed when supported by competent evidence, as it was here. The view that the ruling of the court was not erroneous is sustained by the fact that when the case was called for trial no extreme difficulty was experienced in getting a jury.
Appellant complains that the court overruled his challenge to the array of jurors. A panel of twenty-four jurors was drawn for the regular session of court in March. In April, when it was thought this case would be tried, an additional panel of sixty-five jurors was drawn. In making the order to draw that panel the court directed that no one be placed on the panel who was a resident of Howard township. That was the township in the southeastern corner of the county in which Hooper and the Laheys lived and in which the homicide occurred. The court has statutory authority to so limit a jury panel. (R. S. 43-123; State v. Waldron, 118 Kan. 641, 236 Pac. 855.) About twenty-five jurors drawn on this last panel resided in the county seat. Appellant’s real complaint is that such a large number of the panel was from the county seat, where the county officials and the attorney employed to assist in the prosecution resided, and where it is contended the case had been discussed frequently. Evidence disclosed that this panel of jurors was regularly drawn by the proper officials. The fact that a large percentage of them happened to reside at the county seat perhaps was more accidental than otherwise; the county has a population of a little more than 3,000 and the county seat is the more thickly populated portion of the county. At any rate there is no showing that the drawing of the jury was in any way illegal or irregular.
Appellant next complains that the court overruled his challenges for cause to seven prospective jurors, only one of whom, C. W. Bamber, served on the jury. His examination showed that he had lived in Grant county three years, having moved there from Springfield, Colo. Most of the time he had been in Grant county he had worked for the telephone company or the electric light company as a lineman. On one or two occasions while he was working for the telephone company, between August, 1930, and May, 1931, he had been at the Jimmie Lahey residence to repair the telephone or telephone line. Otherwise he was not acquainted with any of the Laheys, nor with Hooper. At the time of the trial he was living sixteen miles northeast of the county seat, working by the month on a farm. He was a married man with two children. The day of the homicide he was working on a light pole in the county seat. He heard the deputy sheriff say to someone on the street that a man had been killed in the country and he would have to go out there. Later he had heard the case discussed by others, briefly, as many as three or four times in Ulysses, and he had read what was printed about it in the local papers. From this discussion and reading he had an opinion that Hooper shot and killed Frank Lahey; that he shot willfully and intentionally; but he had no opinion as to whether the shooting was excusable, or justifiable, nor as to whether it was unlawful, nor as to whether Hooper was guilty as charged in the information;, neither did he have any opinion as to whether the shooting was done premeditatedly, or with malice aforethought, or because of any quarrel or ill-feeling the parties had toward each other. He understood that it was not every killing of a human being that was unlawful; that the court would instruct the jury on the law of the case, and said he would follow those instructions; that he believed in the doctrine of reasonable doubt and would give the defendant the benefit of that doubt; that if the court instructed the jury as to the elements of the offense which the state must prove beyond a reasonable doubt before defendant could be found guilty he would carefully consider such instructions and require the state to so prove each of such elements. He had no bias or prejudice in the matter and knew of no reason why-he could not sit as a juror and give both the state and the defendant a fair and impartial trial; that he would do so if retained as a juror. He gave answers to many other questions propounded to him touching his qualifications, tending to show he was qualified to sit as a juror. Appellant argues that because the juror had an opinion that Hooper shot Lahey willfully and intentionally that he was disqualified as a juror. That was never a controverted issue in the trial of this case. It was admitted by the defendant on the evening of the homicide when he first came to the sheriff and gave himself up, and at various times in the preliminary proceedings. It was intimated, if not definitely stated, by defendant’s counsel in their examination of jurors. It was stated by defendant’s counsel in his opening statement, and testified to by the defendant on the witness stand.
The pertinent statute (R. S. 62-1409) reads:
“It shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the issue or any material fact to be tried.”
Counsel for appellant, displaying extraordinary diligence, have cited our many decisions dealing with the opinion or impression of a prospective juror as to the issue or some material fact of the case to be tried formed from what he had heard or read of the case; have quoted from many of the decisions, and have argued earnestly that this juror was disqualified. We shall not attempt a résumé of these decisions, nor to write a thesis on the subject. Two points, well settled by our former decisions, are determinative of the question before us: (1) The words “issue” and “material fact to be tried,” as used in the statute (R. S. 62-1409) just quoted, mean controverted issue, or controverted facts to be tried. This is illustrated by the language of Justice Brewer, speaking for the court, in State v. Spaulding, 24 Kan. 1, where a city clerk was being prosecuted for embezzlement. It was said:
“So far as the fact that defendant was city clerk is concerned, we do not think actual knowledge thereof would disqualify. There are facts in many cases which must be proved, and yet facts which all men know. The fact that a certain party is an incumbent of a prominent public office, is one which would be difficult, if not impossible, to find a citizen ignorant of. In a prose-, cution for malfeasance in that office, must the knowledge of such incumbency disqualify a juror? If a public building is destroyed by fire, every one knows of it. Could no man sit as a juror upon the trial of one charged with setting it on fire who knew that the building had been burned?” (p. 5.)
In State v. Brown, 15 Kan. 400, the juror on his voir dire answered in the affirmative this question: “Have you formed or expressed an opinion that Phillips, the deceased, was killed, and that Brown, the prisoner, killed him?” In the opinion the court said: “The question whether the defendant killed Phillips was a ‘material fact to be tried.’ It was, indeed, one of the principal facts in this case.” It was held the juror was disqualified. That case was distinguished in State v. Wells, 28 Kan. 321, where the juror on his voir dire said that he “was convinced that William N. Waddell (deceased) was dead,” “and that defendant had killed him,” and “that it would require a great deal of evidence to remove this conviction.” The record, however, disclosed that the death and killing by defendant was conceded. Defendant’s counsel stated to the jury “that it would appear from the evidence that defendant had killed the deceased, but that it would be shown that the killing was done in self-defense.” In the opinion the court said:
“And if the defendant, by his counsel, had not conceded that he killed the deceased, such killing would have been a very material fact in issue in the case, and a very material fact to be tried. As the fact of the killing, however, was everywhere conceded in the present case, as it was not in reality a material fact in issue in the case, as it was not a fact contested by the defendant before the jury, but was a fact admitted and confessed to the jury, we think the court below did not commit any material and substantial error in overruling the defendant’s challenge for cause.” (p. 323.)
In State v. Gould, 40 Kan. 258, 264, 19 Pac. 739, several jurors on their voir dire expressed an opinion that defendant had shot and killed his wife. The fact that he did so was not controverted. The defense was insanity at the time of the homicide. The prospective jurors had no opinion upon that question. As this was the only controverted question in the case the court’s action in overruling defendant’s challenges for cause was held not to be material error.
In State v. Sorter, 52 Kan. 531, 34 Pac. 1036, the defendant, charged with murder, admitted killing the deceased, but claimed he was justified on the ground of self-defense. Several jurors in their voir dire stated they had an opinion that the deceased had been shot and killed by defendant, but had not formed or expressed any opinion as to the guilt or innocence of the defendant. It was held the court committed no substantial error in overruling the challenges for cause.
In State v. O’Shea, 60 Kan. 772, 57 Pac. 970, the pertinent syllabus reads:
“The mere fact that a person called as a juror had formed or expressed an opinion that the defendant shot and lulled the deceased did not disqualify him as a juror, where the shooting and killing was conceded by the defendant, who claimed that it was done in self-defense.” (¶ 1.)
In State v. Morrison, 67 Kan. 144, 72 Pac. 554, a murder case, where a defendant admitted the killing and justified it on the ground of self-defense, it was held:
“. . . the act of killing is not the issue to be tried in the case, and a juror who, in his examination upon his voir dire, states that he has formed or expressed an opinion as to the guilt of defendant is not for that reason alone disqualified, if from his entire examination it clearly appears that such opinion is based upon the belief that defendant killed deceased, and that the juror has neither formed nor expressed any opinion as to whether the defendant was justified in taking the life of deceased, as that is the material fact or issue to be tried.” (Syl. ¶ 3.)
This principle has never been deviated from in this state and is followed elsewhere. State v. Draper, 27 P. 2d 39, 49 (Utah), and State v. Hoffman, 94 Mont. 573, 23 P. 2d 972, where our decisions, with others, are cited and followed.
(2) The determination of the question whether a prospective juror is qualified to sit in a case is a trial of that question to the court (R. S. 62-1410). The trial court’s decision on that question will not be disturbed on appeal unless disqualification appears as a matter of law, or it is disclosed that there has been an abuse of the court’s discretion. (State v. Stewart, 85 Kan. 404, 116 Pac. 489.) “It is the mind of the court which must be satisfied that the challenged juror is free from bias and prejudice.” (Morton v. The State, 1 Kan. 468, 472.) (See, also, State v. Molz, 91 Kan. 901, 139 Pac. 376; State v. Mullins, 95 Kan. 280, syl. ¶ 6, 147 Pac. 828; State v. Tucker, 137 Kan. 84, 91, 19 P. 2d 346.) Applying these principles, it was not error for the court to overrule defendant’s challenge for cause to the juror C. W. Bamber.
Six other prospective jurors answered questions on their voir,dire substantially as did the juror Bamber. Defendant challenged them for cause. It was not error for the court to overrule those challenges. One of these, J. H. Titus, in the course of his examination stated that his wife is a cousin to the wife of Jimmie Lahey. No special attention was given to the statement at the time, and we are unable to find from the record that the trial court’s attention was ever called to that fact as being a ground for challenge for cause. The challenge was “to this juror on his whole examination.” It directed the court’s attention to no specific ground of challenge. Appellant now contends the juror was disqualified under our statute (R. S. 62-1406), which reads:
“Where any indictment or information alleges an offense against the person or property of another, neither the injured party nor any person of kin to him shall be a competent juror on the trial of such indictment or information; . . .”
We would be justified in declining to determine this question, since no point was made of it in the trial court, or if it can be said to have been made it was buried in the general language used in challenging the juror and was never again brought to the court’s attention. A party should fairly and explicity call the attention of the court to a point on which he relies. (State v. Bell, 121 Kan. 866, 870, 250 Pac. 281, and cases there cited.) But since we are not urged to take this view we will consider the question.
The Jimmie Lahey mentioned by Titus in his examination obviously is the brother of Frank Lahey, as he is elsewhere so referred to in the evidence, and not the father of Frank Lahey, as he appears always to be referred to as “Uncle Jimmie,” although the matter was given so little attention that the distinction was not brought out in the examination of Titus. Neither was it brought out whether the wife of Titus is a first, second, or forty-second cousin to the wife of Jimmie Lahey.
The word “kin,” as used in our statute (R. S. 62-1406), above quoted, and in a similar section of our civil code (R. S. 60-2906), appears never to have been defined in any of our decisions, although a part of our law since 1859 (Laws 1859, ch. 27, § 181; Comp. Laws 1862, ch. 32). One may be related to another by consanguinity, that is, through blood line; or by affinity, that is, through marriage. The primary and ordinary meaning of the word “kin” is related by the ties of consanguinity (State v. Tucker, 174 Ind. 715, 93 N. E. 3; 35 C. J. 914; Bouvier’s Law Dict.). At common law kinship by consanguinity within the ninth degree, as computed by the civil law, disqualified a juror (Bailey v. Turner, 108 Kan. 856, 860, 197 Pac. 214; 35 C. J. 317). Perhaps our statute (R. S. 77-201, ¶ 28) would limit that to second cousins. But we are not concerned here with any degree of kin by consanguinity, for it is not even contended any such kinship existed. If we apply to the word “kin” used in the statute in question its common and ordinary meaning the juror was not disqualified. In many states the statutes provide that a juror related by consanguinity or affinity within a stated degree is disqualified. (See cases collected in American Digest, Jury, § 90.) The first statute on that question in this state (Stat. Kansas Territory 1855, ch. 92, § 12), commonly known as the “bogus statute” because of its general lack of recognition by the citizens of the state, provided: “. . . No person . . . who is of kin to either party . . . within the fourth degree of consanguinity or affinity, shall be sworn as a juror. . . .” But this, as we have seen, was superseded by the statute in 1859, which, with slight change not here important, is our present law.
The word “kin” is sometimes used in a general sense to include relationship by blood or by marriage. (35 C. J. 914; Bouvier’s Law Dict.) A Missouri statute like ours has been held to apply to kin by blood or marriage (State v. Walton, 74 Mo. 270; State v. Stewart, 296 Mo. 12, 246 S. W. 936, 939). And in State v. Tart, 199 N. C. 699, 155 S. E. 609, it was held that relationship by blood or marriage within the ninth degree disqualifies. Hence, we will examine the qualifications of the juror Titus, using the word kin as including relationship by marriage. Affinity is the relation which one spouse, because of the marriage, has to the blood relatives of the other. Degrees of relationship by affinity are computed as are degrees of relationship by consanguinity. The doctrine of affinity grew out of the canonical maxim that marriage makes the husband and wife one. The husband has the same relation, by affinity, to his wife’s blood relatives as she has to them by consanguinity, and vice versa. The doctrine, however, as originally outlined, which is as above stated, never went so far as to hold that a husband (or vice versa as to the wife) became related by affinity to a spouse of a blood relative of the wife. (2 C. J. 377.) It is true a few cases have so held (State v. Joseph B. Wall, 41 Fla. 463, 26 So. 1020), but the great weight of authority is to the contrary. “Blood relations of the husband and the blood relations of the wife are not related to each other by affinity.” (2 C. J. 378.) “The aflfines of the wife are not those of the husband, nor are the affines of the husband, those of the wife.” (2 Stephens Commentaries, 285.)
In Central Railroad Co. v. Roberts, 91 Ga. 513, 18 S. E. 315, a juror was held not to be incompetent because his stepdaughter married the brother of the plaintiff. The marriage established no relationship or affinity between the juror and the plaintiff. In the opinion it was said:
“Marriage will relate the husband by affinity to the wife’s blood relations, but will not relate the husband’s brother to any of her relations. The husband of the juror’s stepdaughter was not related to the juror, but only to the juror’s wife. The husband’s brother, the plaintiff, was further off still; he was not related even to the juror’s wife.
“The groom and bride each comes within
The circle of the other’s kin;
But kin and kin are still no more
Related than they were before.” (p. 516.)
See, also, Carl S. Strickland Co. v. Union Bkg. Co., 42 Ga. App. 645, 157 S. E. 115; Carpenter v. State, 34 Ga. App. 133, 128 S. E. 687; Bliss v. Caille Brothers Co., 149 Mich. 601, 113 N. W. 317, 319; Wolfe v. Commonwealth, 229 Ky. 385, 17 S. W. 2d 219; State v. Chandler, 178 La. 7, 150 So. 386; Farmer’s Nat. Bank v. J. W. Wallace & Co., (Tex. Civ. App.) 263 S. W. 1105; Gantt v. Belk-Simpson Co., 172 S. C. 353, 174 S. E. 1. The juror Titus was not related by affinity to Jimmie Lahey — much less to Frank Lahey, the deceased. It was not error for the court to overrule defendant’s challenge for cause.
Titus did not sit as a juror in the trial of the case. He and five other persons challenged for cause by the defendant, which challenges were overruled, were later challenged peremptorily by defendant. Of the twelve jurors who heard the evidence and reached the verdict only one, C. W. Bamber, was challenged for cause, and as to him we have held the court properly overruled the challenge. Our constitution (bill of rights, § 10) guarantees to an accused a trial by an impartial jury. That is all the accused can constitutionally demand. (16 R. C. L. 291.) While our statutes contemplate the use of peremptory challenges on jurors qualified for cause, error in the court’s ruling on a challenge for cause, especially if the soundness of the ruling is seriously debatable, should not require a reversal of judgment of conviction, if in fact, as here, the defendant had a trial before an impartial jury.
Several questions are raised respecting the admission of evidence: (1) On the cross-examination of Workman, a witness for the state who had testified with respect to the location of the parties about the time of the homicide, was asked if Jack McKeegan was on the outside of the pasture. The court sustained plaintiff’s objection as not being proper cross-examination. There was no error in the ruling. More than that, the testimony as a whole left no room for any doubt as to where McKeegan was. (2) A deputy sheriff, called as a witness for the state, testified to having picked up shells at the places where Workman told him Lahey and Hooper stood at the time of the shooting. He spoke of those places as the “tracks” of the parties, and testified Workman told him those were Hooper’s tracks. Defendant’s motion to strike out the testimony as hearsay was overruled. While technically it was hearsay, the ruling was not error, for there is no serious controversy as to where the parties stood. (3) The court, over defendant’s objection, admitted in evidence the rifle used by Hooper. We see no error in that ruling. (4) A witness called by defendant was asked, on cross-examination by the state, a few questions about litigation he had previously had in the courts. Defendant’s motion to strike out this testimony was overruled. The questions were preliminary in their nature, and perhaps went slightly to the credibility of the witness. The ruling of the court was proper. (5) A character witness called by defendant, after stating he knew defendant’s general reputation in the community as a law-abiding citizen, was asked to state what it was, and replied that he had “never heard a disparaging word said against Hooper by anyone.” On motion of the prosecuting attorney this answer was stricken out as not being responsive. This ruling was inaccurate. (State v. Patterson, 112 Kan. 165, 172, 210 Pac. 654.) Counsel for defendant then called the attention of the witness to the fact that the court had struck this answer because it was not responsive and reframed the question and procured from the witness appropriate answers. Such error as there was in the ruling was of no consequence. (6) Complaint is made that the state was permitted to impeach the witness Workman, called by the state. This is not what happened. A foundation was laid for the impeachment as to one or two questions, but it never was followed up. Another witness for the state was permitted to be called to correct a statement he had made in his former testimony. There was no error in these rulings. (7) The defendant, when a witness, in testifying as to how Lahey was riding just before he dismounted, stated that Lahey “went forward and sort of crouched down, apparently that way.” This was stricken out on motion of the prosecuting attorney as being self-serving and stating a conclusion. While the court might have let the answer stand, the ruling is of but little consequence in view of the fact that Hooper, in answer to other questions, stated that Lahey ordinarily rode sitting erect in the saddle, but the man he saw that day was riding leaning for ward, crouched over. In other words, his idea of the matter was clearly conveyed to the jury by answers to other questions.
In the course of the trial it developed that counsel for the state had a transcript of the testimony taken at the coroner’s inquest on the afternoon of the homicide. Defendant’s counsel immediately asked for a copy of it and moved the court to require counsel for the state to furnish them a copy. Counsel for the state declined voluntarily to give a copy of the transcript to counsel for defendant, but were willing to do so if the court ordered them to do it. On the hearing of the motion it developed that the coroner’s inquest was never completed and no verdict was returned by the coroner’s jury. It further developed that the testimony had not been taken by the order or request of the coroner. Mr. Wesley, a former county attorney, without having any general or special .authority to do so, assumed to act in the matter in the absence of the county attorney. He had requested Miss Hollingsworth to take the testimony in shorthand, and she had done so. Later she had transcribed it and given the transcript to. the attorneys for the state. It had not been shown to the witnesses and they had not signed it. It does not appear whether she ever was paid for doing this by anyone. At the time she was a stenographer in the office of an attorney, then out of the state, who later was employed to assist in the prosecution. The court held that the attorneys for the state were not required to furnish counsel for defendant a transcript of this testimony. It was not an official document, nor a part of any court record. There was no error in that ruling. (State v. Laird, 79 Kan. 681, 100 Pac. 637; State v. Lawellin, 125 Kan. 599, 602, 264 Pac. 1035.)
At the trial a controversy arose as to whether the witness Wyatt, at the examination held before the coroner on the afternoon of the homicide, had been asked the question, “What, if anything, was said between Mr. Lahey and Mr. Hooper just a moment before the shooting took place?” and had answered, “If there was anything said I didn’t hear it.” Defendant produced witnesses who testified that this question had been asked of Wyatt and so answered by him. In rebuttal the state produced a number of witnesses, including each member of the coroner’s jury, who testified the question was not asked Wyatt and that he made no answer to it. Wyatt testified to the same effect. The state then called Carrie Hollingsworth, who had taken the stenographic notes of that testimony and later tran scribed them, who testified she had been in possession of her stenographic notes since they were made and frequently had read them, and that from reading those notes she knew the question had not been asked, and of course that no answer had been returned to it. Defendant objected to the testimony of this witness. We see no reason why she was not as competent to testify on that subject as any of the witnesses who gave testimony concerning it. She was present and heard the testimony, but she relied more definitely upon her stenographic notes, which she had read carefully several times since the taking of the testimony.
Appellant complains that the court did not give an instruction requested relating to testimony of previous good character of defendant. The instruction given, with one change favorable to defendant, was taken verbatim from the instruction considered by this court in State v. Sorter, 52 Kan. 531, 34 Pac. 1036, and held not to be erroneous, and again approved in State v. Moore, 135 Kan. 164, 9 P. 2d 653. Perhaps both the instruction requested and the one given can be improved upon in wording^ but the one given was more complete than the one requested, and it is free from the objections raised against it by appellant.
Appellant requested the court to instruct the jury “that your verdict in this case must be either for murder in the first degree or an acquittal. There is no evidence in this case which will justify a verdict of manslaughter in any degree.” The court declined to give that instruction, but gave the usual instructions on first and second degree murder and each of the degrees of manslaughter. Appellant argues that defendant shot to kill, that he had no less intention than to kill, hence if he was guilty of any offense he was guilty of murder in the first degree. The contention puts the case stronger than defendant did in his testimony, and yet it omits the element of premeditation essential to murder in the first degree. It is not argued the instructions of the court on these matters were improper if there was any evidence to support a verdict of guilty for an offense less than murder in the first degree. The contention is there is no evidence to support such a verdict. With this we cannot agree. The testimony on some points was in conflict. Indeed, the jury might have drawn different inferences from some of the evidence over which there was little or no dispute. While there is evidence in the record which would have supported a verdict of guilty of murder in the first degree, it was for the jury to weigh this evidence, pass on the credibility of the witnesses, and give to the defendant the benefit of reasonable doubt, not only as to whether he was guilty of any offense, but, if there was any reasonable doubt as to his being guilty of the highest offense charged, to give him the benefit of that doubt. Of course, if the defendant was guilty of murder in the first degree, he cannot complain that the jury was more lenient with him than it should have been by finding him guilty of manslaughter in the first degree. (State v. Bigler, 138 Kan. 13, 19, 23 P. 2d 598.)
Appellant complains of an instruction given to the effect that if Frank Lahey in good faith thought one of his steers was in the Hooper pasture he would be guilty of no offense if he went in there to look for it, and before Hooper would be justified in assaulting him it was his duty to order Lahey to leave, and if he refused to go defendant would then have a right to use such force as was necessary to put him off the place. The contention is that this instruction injected into the case an issue not raised by the testimony or involved in the trial. Early in the case, and repeatedly throughout the trial, defendant’s counsel injected into the case the theory that Lahey was a trespasser in Hooper’s pasture; that he had no right there, and sought to bring out that he had come there armed and had brought Wyatt, a stranger to Hooper, as a bad man from Texas, armed; that they had come for the purpose of following Workman and Hooper, and killing Hooper. It is true there was not much evidence to support that view — in fact, much of it was directly to the contrary — yet it was kept prominent throughout the trial. Obviously the instruction was given because the question had been injected into the case by defendant and his attitude concerning it throughout the trial. In view of that it was not an improper instruction to give.
In one of the instructions the court told the jury: “The defendant in this case has admitted the shooting and killing of Frank Lahey, as charged in the information, and the actual killing of said Frank Lahey is therefore removed from your consideration.” Appellant complains of that instruction and says that since Hooper was charged with murder in the first degree the instruction that he admitted the killing, “as charged in the information,” told the jury outright to find him guilty of murder in the first degree. Obviously this is an afterthought. No one. at the trial placed that interpretation upon the instruction. If the jury had so interpreted the instruction the verdict would have been “guilty of murder in the first de gree.” Even counsel for defendant, in preparing the abstract for this court, did not abstract this instruction. Apparently the point was thought of after the abstract was made. We agree that the words, “as charged in the information,” should not have been in the instruction, but in view of other instructions given, embodying elements which the state must prove beyond a reasonable doubt before a verdict of guilty could be sustained, and the fact that the record clearly shows the interpretation of this instruction now contended for was not given it by the jury, or anyone, at the time of the trial, we think the error to be a technical one, which this court is admonished by statute (R. S. 62-1718) to disregard, and we do so.
Lastly, it is argued that the court erred in overruling defendant’s motion for a new trial. That depends upon questions previously discussed herein.
We find no material error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
The case comes to this court on a Petition for Review from the Court of Appeals. The Court of Appeals reversed a summary judgment entered by the district court in favor of the plaintiff Farmers Insurance Company and remanded the case for further proceedings. See Farmers Ins. Co. v. Schiller, 3 Kan. App. 2d 87, 589 P.2d 641 (1979). We reverse the decision of the Court of Appeals and affirm the summary judgment entered by the district court in favor of plaintiff.
This action was filed by the insurance company for a declaratory judgment to determine possible liability exposure under the permissive user provision of the omnibus clause in an automobile insurance policy issued to Robert L. Hester. The policy provided coverage for personal injuries with respect to Hester’s truck to the named insured or a relative and to “any other person while using such automobile and any other person or organization legally responsible for its use, provided the actual use of such automobile is by the named insured or with his permission.”
The insurance company by petition in the declaratory judgment action alleged it had issued a policy of automobile liability insurance insuring Robert Hester and covering his 1959 Ford truck; that Hester sold the truck on August 31, 1974, to David Bayless and delivered the certificate of title to him; and by reason of said completed sale it was no longer responsible for claims arising thereafter out of the operation and use of the truck by Bayless or others. The company alleged that its assured, Hester, at no time thereafter permitted John R. Schiller or Robert V. Moore to use or drive the truck. The company further alleged that Schiller had made claim against the company for personal injury protection benefits, that no coverage was provided under the Hester policy to Schiller, and that the court should determine that no liability exists as to Schiller as a result of the accident which was alleged to have occurred on September 4, 1974, wherein either Schiller or Moore was allegedly driving said vehicle.
Schiller answered alleging no knowledge of the whereabouts of Moore, admitting the existence of the policy of insurance, admitting that the ownership of the truck was in Hester, and alleging that the policy was in effect and that coverage existed for Schiller on September 4, 1974. This answer was filed April 15, 1976.
On November 9, 1976, plaintiff filed a motion for summary judgment alleging no genuine issue as to any material fact as shown by an affidavit and memorandum attached to the motion.
The affidavit was by Hester and stated that he sold the 1959 Ford pickup truck to Dave Bayless on August 30, 1974, for $150.00. Bayless paid $100.00 down and agreed to pay the balance the following week. Hester signed the certificate of title transferring ownership but since it was after 9:00 p.m. no notary public was immediately available. Bayless then advised Hester that he would get the title notarized and bring the title back in the morning. Bayless wanted to drive the pickup home since he had no other transportation. Hester allowed his license tag to remain on the vehicle and permitted Bay less to drive the vehicle home but with the understanding and promise from Bayless that he would return the pickup and title the next morning. Hester stated in his affidavit that he did not authorize Bayless to drive the pickup except to his house and back. He further stated under oath that he did not authorize Bayless to permit any other person to drive the pickup.
In this affidavit filed in support of the motion for summary judgment Hester further stated that Bayless failed to return on the following morning, that plaintiff attempted and was unable to locate Bayless or the pickup on September 2 and 3, that Bayless came to Hester’s house on September 5,1974, and advised Hester the vehicle had been involved in an accident. Bayless advised Hester that Bayless was not driving nor was he a passenger in the pickup at the time of the accident.
On November 15, 1976, the deposition of Hester was taken on behalf of Schiller. No material change in the facts set forth in Hester’s affidavit appears in the deposition testimony.
On February 8, 1977, the district judge advised the attorneys for both parties by letter that he had considered plaintiff’s motion for summary judgment and was overruling the motion since discovery had not been completed. The judge further advised the attorneys that upon completion of discovery, if the uncontroverted facts remained the same as set forth in the motion and affidavit on file, the motion could then be renewed and it would be sustained.
No further discovery was undertaken by defendant Schiller and no affidavits in opposition to the request for summary judgment were filed. On February 22, 1977, plaintiff renewed its motion for summary judgment and filed an additional affidavit in support thereof. The additional affidavit was executed by Larry D. King who stated under oath that he was present and witnessed the sale of the pickup by Hester to Bayless. King further stated under oath that Bayless agreed to get the title notarized by his uncle that same evening; that, after repeated demands were made by Bayless, Hester allowed Bayless to drive the pickup home “upon the stated fact that Mr. Bayless would drive the pickup home only and to park it.” King in his affidavit further stated that the pickup did not have a battery in it; that Hester removed a battery from his car and put it in the pickup; and that Hester told Bayless to return the battery and vehicle tag the following day.
In response to this motion and affidavit Schiller filed a motion for additional time to submit “a brief and affidavits if necessary on the issue of coverage.” The motion stated: “It is anticipated that the question of whether there is coverage under the policy can be decided as a question of law.” Thereafter defendant Schiller filed a brief but filed no affidavits or discovery depositions in opposition to the facts set forth in the plaintiff’s affidavits and deposition. Schiller had previously requested additional time “to complete discovery as to whether the driver of the car at the time of the collision was a permittee covered under the usual omnibus clause of plaintiff’s insurance policy.” Additional time had been afforded yet Schiller failed to furnish anything which might bear upon the question of who was driving and riding in the car, and whether the occupants had obtained permission to use the vehicle.
Under the above circumstances the trial court was justified in ruling on the motion for summary judgment based on the uncontroverted facts set forth in plaintiff’s affidavits and deposition. Allegations made in the pleadings and briefs will not sustain a genuine issue of fact when opposed by uncontradicted affidavits supporting a motion for summary judgment. Ebert v. Mussett, 214 Kan. 62, Syl. ¶ 3, 519 P.2d 687 (1974). Summary judgment may be granted when the record before the court shows conclusively there remains no genuine issue as to any material fact after the party against whom the motion was filed has failed to controvert a showing by affidavit, deposition, or otherwise that the moving party is entitled to judgment. Ebert v. Mussett, 214 Kan. 62; Miller v. Sirloin Stockade, 224 Kan. 32, 36, 578 P.2d 247 (1978).
The first legal issue confronting this court is whether there was a completed sale of the pickup from Hester to Bayless which would relieve Hester’s insurance company from exposure under the policy. The Court of Appeals and the trial court determined the sale had not been completed, and that Hester’s insurance company was not relieved from exposure under the policy. We agree. However, we cannot agree with the Court of Appeals’ holding that the lack of a notarization on the title rendered the sale fraudulent and void. The statute then in effect, K.S.A. 1974 Supp. 8-135(c)(2), did require the assignment of title to be executed by the owner before a notary public. However, K.S.A. 1974 Supp. 8-135(c)(6) further provides:
“It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder; unless, at the time of delivery thereof or at a time agreed upon by the parties, not to exceed fifteen (15) days after the time of delivery, there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle required to be registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void, unless the parties shall agree that the certificate of title with an assignment thereof shall pass between them at a time other than the time of delivery, but within fifteen (15) days thereof. . . .”
According to the uncontroverted facts Hester complied with all provisions of the statute except for the notarization of his signature, and when he delivered the title it was agreed the purchaser would have the signature notarized that very evening or return the certificate in the morning so Hester could get it notarized. Under these circumstances the sale was not fraudulent and void. The purpose of K.S.A. 8-135 is to require the issuance of a certificate of title for every vehicle required to be registered under the act, and to provide a means by which one may readily ascertain who is the owner of a motor vehicle, thus protecting the public from the evils arising from the unregulated use, transfer, and sale of such a vehicle. Melton v. Prickett, 203 Kan. 501, 456 P.2d 34 (1969).
The failure to notarize an assignment of title does not necessarily render a contemplated sale fraudulent and void. The opinion of this court in In re Estate of Powell, 222 Kan. 688, 692, 567 P.2d 872 (1977), holds:
“Although K.S.A. 8-135 was violated when Howard signed the title without the presence of a notary, no one has contended the signature on the title transfer was not Howard’s signature. He intended to give Edith the mobile home and his failure to comply with K.S.A. 8-135 does not invalidate the transfer. . . .”
In the present case it was agreed between the parties that certain things remained to be done to complete the sale. The title was to be notarized. Bayless was to return the license tag and the battery which were temporarily placed on or in the pickup. There appears no evidence except that which indicates the parties did intend to fully comply with the statute on the following day when the sale would be completed. Until that time the sale was not complete, title did not pass, and plaintiff’s exposure under the Hester policy continued.
The next question is whether Schiller was insured as a permissive user under the policy issued to Hester. Under the uncontroverted facts the named insured, Hester, not only placed a restriction against persons other than Bayless using the vehicle but also limited Bayless’ use of the vehicle to one trip home and a return trip to Hester’s home the following day.
It is the general rule that a second permittee using a car solely for his own purpose is not entitled to protection under the omnibus clause of an automobile insurance policy where the named insured has expressly prohibited the first permittee from allowing other persons to use or operate the car. Gangel v. Benson, 215 Kan. 118, Syl. ¶ 3, 523 P.2d 330 (1974). Because of the harshness of this general rule some courts have found a sufficient basis under certain facts and circumstances to imply permission, despite an expressed prohibition against use by third persons. Gillen v. Globe Indemnity Company, 377 F.2d 328 (8th Cir. 1967). In Gangel the court quoted Gillen which recognized certain situations where consent to use a vehicle may be implied, even in the face of an expressed restriction against use by third parties. Permission may be implied in some cases if and when:
(1) The first permittee is actually in the vehicle;
(2) The car is being used for the benefit of the first permittee or the named insured;
(3) The first permittee has equitable title and unfettered control over the daily use of the car free of surveillance by the named insured;
(4) The named insured is aware of past violations of the restrictions but has continued to allow the permittee to have possession; or
(5) An emergency arises requiring such use. Gangel v. Benson, 215 Kan. at 124-125. See also Jones v. Smith, 1 Kan. App. 2d 331, 564 P.2d 574, rev. denied 223 Kan. clxxi (1977); United States Fidelity & Guaranty Co. v. Continental Ins. Co., 1 Kan. App. 2d 722, 573 P.2d 1106 (1977).
The affidavit by Hester, the named insured, negatived his presence in the car as either a driver or passenger. The defendant Schiller alleged no facts or circumstances which, if proven, might have brought him within one of the situations where consent to use the vehicle might have been implied in face of the express prohibition against use by third parties. Under the uncontroverted facts of this case permissive use of the vehicle by Schiller or Moore could not be implied in the face of the expressed prohibition against such use when possession had been expressly restricted to Bayless, and Bayless was neither the driver nor a passenger in the vehicle when the accident occurred.
One final question is raised on behalf of Schiller. He claims that even if coverage does not exist under the liability provisions of Part I of Hester’s policy there was coverage under Part II which provides benefits for bodily injury caused by uninsured motorists. In his brief he alleges that Moore was driving the vehicle and that he, Schiller, was a passenger covered by the policy. Part II of the policy provides payment as follows:
“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle; . . .”
Under the definition section of this coverage “insured” includes “any other person while occupying an insured motor vehicle.” “Insured motor vehicle” is defined as the described vehicle, “provided the actual use thereof is by the named insured, or by any other person with the permission of the named insured.” So again the question of coverage is one of permission to use the vehicle, or the lack of it.
Schiller argues that uninsured motorist coverage is mandated by law and that insurance policy provisions which purport to condition, limit or dilute the unqualified uninsured motorist coverage mandated by the statute, are void and of no effect. Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P.2d 507 (1973); Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173 (1973); Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 549 P.2d 1354 (1976). The provision designating the persons covered against personal injury caused by an uninsured motorist includes the very same persons who are “the insured” in this policy of insurance. Their designation does not condition, limit or dilute the uninsured motorist coverage. In issuing a policy of insurance a company has a right of contract which permits the company to predetermine who is to be “the insured.” Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. at 451, 452. This court has held, however, that when that determination is once made the persons insured under the uninsured motorist coverage cannot then be so defined to limit or restrict the persons insured and thereby dilute coverage under the uninsured motorist provisions of the policy. A person covered or insured as a named insured in the policy cannot be eliminated by definition from uninsured motorist coverage. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. at 609. In the present case the persons to whom the coverage is extended under the uninsured motorist provisions of the policy are restricted no more than in the other provisions of the policy. The persons predetermined for coverage in the policy are covered against the uninsured motorist. Insurance coverage is not present in either event when the vehicle is being operated by a third party without the express or implied permission of the insured.
K.S.A. 40-284 requires that insurance companies provide coverage for personal injuries sustained “by the insured.” The persons insured under the general policy may be predetermined by the company to include a named insured, a relative, or a passenger occupying the insured vehicle provided the actual use of the vehicle is by the named insured or any other person with permission of the named insured. The uninsured motorist statute was not enacted to provide coverage for everyone. In event of theft or nonpermissive use of a vehicle a guest passenger of the unauthorized user, which passenger does not fall within the definition of “insured” contained in the policy, is not within the coverage mandated by the uninsured motorist statute, K.S.A. 40-284. Nationwide v. Harleysville Mutual, 203 Va. 600, 125 S.E.2d 840 (1962). See also 12 Couch on Insurance 2d § 45:646-648.
Under the uncontroverted facts of this case Schiller was not covered by either the liability or the uninsured motorist provisions of the policy issued to Hester. Summary judgment in favor of plaintiff and against the defendant Schiller was proper. The opinion of the Court of Appeals is reversed. The judgment of the district court in favor of plaintiff is affirmed.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiffs, James D. Murray and Jeanne F. Hoffman, individually and as trustees of certain trusts created in the wills of Edward F. Murray, Sr. and Esther M. Murray, from judgment entered in the Riley District Court quieting title to certain real estate in the defendant, Albert D. Wood, and quieting title to certain other real estate in the defendants, Frank Miller, Jr. and Winifred Miller. The plaintiffs, who will be referred to as the Murrays, are the appellants; defendants Wood and the Millers, together with the State of Kansas, appear as appellees.
Prior to 1951, land owned by the Murrays, land owned by the Millers, and land owned by Wood, were each riparian to the Kansas river, a navigable stream. The river channel changed suddenly, or by avulsion, following the 1951 flood. The State of Kansas, in 1967, sold the abandoned riverbed to the Millers and to Wood, and issued patents to them. The principal issues before us in this appeal are whether the river channel moved by accretion or avulsion during the period from 1857 to 1951; whether the State owned the land it sold in 1967; and whether the sale and conveyance by the State, without notice to the Murrays, was procedurally and constitiitionally valid.
OWNERSHIP OF THE LAND
The land here involved lies in the west half and the northeast quarter of section 33, township 10 south, range 7 east of the 6th principal meridian in Riley County, Kansas. Murrays owned (for all purposes here involved) the northwest quarter of section 33. Wood and the Millers owned land in the southwest quarter of section 33, and the Millers also owned a tract in the northeast quarter of that section. According to the 1857 government survey, the Kansas river channel traversed the southwest quarter of section 33, starting in approximately the middle of the south line of the southwest quarter and proceeding in a northeasterly direction toward the northeast corner of that quarter section. The river proceeded across the southeast corner of the northwest quarter and then continued into the east half of section 33.
The Millers, Wood, and the Murrays each derived title by mesne conveyances from the patentees designated in United States Patents issued more than a century ago. The Millers were the owners of Lot 5, which originally included all that part of the southwest quarter of section 33, lying east of the Kansas river, and also Lot 3, which included all that part of the northeast quarter of section 33 lying east of the Kansas river. Wood was the owner of Lots 6 and 7, which included all that part of the southwest quarter of section 33 lying west of the Kansas river. The Murrays were the owners of Lot 2, which included áll that part of the southeast quarter of the northwest quarter of section 33 lying north and west of the Kansas river. The 1857 survey indicates that Lot 2 then contained 31 acres. Between 1857 and 1951, the river channel moved in a northwesterly direction into the northwest quarter, thus markedly reducing the acreage in Lot 2 lying north and west of the river. Immediately prior to the 1951 flood, Lot 2 had shrunk to approximately 9 acres, plus railroad and highway rights of way and a small triangular acreage north and west of the highway which is not involved here. During the flood, the nine acre tract was further eroded, and the river cut a new channel about one mile to the southeast.
A CHANGE IN FEDERAL DECISIONAL LAW
The petition was filed and this case was commenced on December 14, 1973. Three days later, on December 17, 1973, the United States Supreme Court handed down its opinion in Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 38 L.Ed.2d 526, 94 S.Ct. 517 (1973), holding that ownership of the abandoned riverbed of a navigable stream is governed by federal law. The Colorado river’s course was changed by a federal rechanneling project; the Supreme Court of Arizona had held that the change in the river’s course was an avulsive change, and that under Arizona law, title to the abandoned riverbed remained in the State. The United States Supreme Court reversed, holding that title to the abandoned riverbed vested in the riparian landowners under the applicable federal common law.
The case now before us was briefed and tried under the Bonelli doctrine. However, before a final judgment was entered, the United States Supreme Court on January 12, 1977, announced its decision in State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 50 L.Ed.2d 550, 97 S.Ct. 582 (1977), overruling the Bonelli decision. Corvallis holds that the determination of title to the abandoned bed of a navigable river is a matter determinable under state law, rather than under the federal common law.
At the time the decision in Corvallis was announced, the trial court in this case had communicated its findings to counsel, but stated that a journal entry of judgment could not be entered until a survey was made; thus, no journal entry had been filed and judgment had not been entered. Shortly after the Corvallis decision was announced, defendants Miller and Wood filed a motion asking the trial court to set aside its conclusions of law (which were based on Bonelli); to adopt new conclusions, based on Corvallis and the applicable Kansas law; and to settle the form of the journal entry. That motion was sustained, and the final journal entry of judgment was filed September 19, 1977, incorporating the Corvallis holding as the law of this case.
THE TRIAL COURT’S JUDGMENT
The evidence was hotly disputed; there was testimony from the parties; from many witnesses who had observed the land from shortly after the turn of the century until the time of trial; and from expert witnesses: surveyors, a geologist, and a forester. The trial judge made detailed findings and conclusions — 41 separate findings of fact and 27 conclusions of law — which we summarize as follows:
FINDINGS OF FACT
“2. By a patent issued by the United States of America, dated September 1, 1860, plaintiffs’ predecessors in title were granted title to [lot 2, section 33, township ten south, range 7 east, in the district of lands formerly subject to sale at Ogden now Junction City, Kansas].
“3. Lot 2 . . . was bordered at the time of the Government Survey [1857] ... on the south and east by the Kansas River ....
“5. Plaintiffs acquired title to [lot 2, with certain exceptions not here material] as a result of the administration of the estates of Esther Mabel Murray and E. F. Murray, Sr.
“7. Miller, on the 24th day of April, 1957, by Warranty Deed, acquired title to Lot 5 . . . .
“8. On the 29th day of June, 1956, Miller acquired title to a portion of Lot 3 . . . .
“8a. At all and any times material to this action any ground that was north of the south line of the northwest quarter of Section 33, Township 10 South, Range 7 East of the 6th Principal Meridian and west of the east line of the northwest quarter of said Section 33, but southeast of the river channel, was not a part of Lot 2 but was at all times an accretion to Lot 5 of said Section 33 and that part of Lot 3 of Section 33 acquired by Miller by Deed in 1956.
“9. At all times material in this action, the defendants, Miller, and their predecessors in title are and were the owners of Lots 3 and 5 of Section 33.
“10. On February 28, 1967, the defendants, Miller, by patent from the State of Kansas, hereinafter referred to as “Miller patent” acquired all right, title, and interest of the State of Kansas in and to [the right half of the abandoned Kansas river channel, lying in the west half and the west half of the northeast quarter of section 33, containing approximately 50 acres].
“11. With respect to all real estate lying South and East of the above-described real estate set out in the Miller Patent that would, apart from any past, present, or abandoned river channel be a part of the Southeast Quarter of the Northwest Quarter of Section 33, Miller has at all times since April 24, 1957, been in continuous, uninterrupted, open, notorious, quiet, peaceable, exclusive, and adverse possession thereof claiming to be an owner of said real estate under color of title in good faith.
“13. With respect to the Miller Patent described above, there is no evidence of non-compliance by the defendants, Miller, or the State of Kansas with the provisions of K.S.A. 72-2142 and 72-2145. In the absence of evidence of noncompliance with such requirements, the court presumes that such requirements for valid execution and delivery were met.
“14. Albert Wood, father of the defendant, Albert D. Wood, by warranty deed on the 23rd day of February, 1944, acquired title to Lots 6 and 7 of Section Thirty-Three.
“15. At all times material to this action, Albert Wood, and his predecessors in title, are and were the owners of . . . Lots 6 and 7.
“16. On or about February 28, 1967, the defendant, Albert D. Wood, by Patent from the State of Kansas, acquired all right, title, and interest of the State of Kansas in and to [the left or north one-half of the abandoned Kansas river channel in the west half and the west half of the northeast quarter of section 33, containing approximately 50 acres.]
“17. With respect to the execution and delivery of said patent, there is no evidence of non-compliance by the patentee, Albert D. Wood, or the State of Kansas, with the requirements of K.S.A. 72-2142 and 72-2145. In the absence of evidence to the contrary, the law presumes that the patent is valid and all statutory requirements for valid execution and delivery were met.
“19. The State of Kansas, by its Answer and Motion for Summary Judgment, disclaims any right, title or interest in or to any real estate claimed by any of the named parties to this action.
“21. At no time since 1857, and prior to the Flood of 1951, has the State Auditor, or any other official of the State of Kansas ever conveyed any part of Lots 5, 6, 7, or 2 of said Section 33 to a patentee as a part of an abandoned bed of a navigable stream.
“24. Prior to the execution and delivery of the Miller and Wood patents, the owner of said Lot 2 [then, Esther Mabel Murray] was given no notice of surveying, no notice of the proposed sale, no notice of the sale, no notice of any appraisement, and no notice of the issuance of the patents other than the recording of the same in the office of the Register of Deeds of Riley County, Kansas.
“25. The 1951 Kansas Flood eroded the nine-acre field of that portion of Lot 2 North of the River and South of the Railroad tracks to approximately four (4) acres and the river cut a new channel around one mile to the south of said Lot 2.
“27. In 1967 the State of Kansas issued patents on the abandoned Kansas River channel running between Lots 6, 5 and 2 and through the Southwest Quarter of the Northwest Quarter of Section 33, to Albert D. Wood, Frank Miller, Jr., and Winifred Miller.
“28. Esther Mabel Murray, the record title holder of Lot 2 . . . was given no opportunity to purchase whatever interest said State possessed, if any, of said abandoned river channel which bordered a portion of her property on the south and east.
“29. That as a result of the purported sale by the State of Kansas of the abandoned river channel running south and east of Lot 2 . . . the value of
said Lot 2 and said Southwest Quarter of the Northwest Quarter of Section 33 to the plaintiffs has depreciated considerably.
“30. With respect to the movement of the channel of the Kansas River from 1857, at the time of the United States Survey, until the 1951 Flood, when the location of the river channel changed by avulsion:
“(a) All of the evidence when considered . . . that any movement that occurred from 1857 at the time of the United States Survey to the time of the 1903 flood was a process of erosion-accretion rather than avulsion.
“(b) All of the evidence produced by all parties shows that all movement that occurred from, during, and after the 1903 Flood to the time of the 1951 Flood in the channel of the Kansas River at the location in question was a process of erosion-accretion rather than avulsion.
“31. In 1951, during, after, and as a direct result of the Flood that occurred on the Kansas River, the location of the river channel as it existed before the Flood . . . and as described by the legal descriptions appearing in the Miller and Wood patents, was suddenly abandoned, and a new river channel was forged at a location [about one mile to the southeast]. The change that occurred in 1951 was a process of avulsion rather than erosion-accretion.
“33. At all times material in this action, and at all locations material, the Kansas River, also known as the Kaw River, is and was ‘navigable’ within the meaning of K.S.A. 72-2128 to 2142 inclusive, and 82 (a)-201 to 205 inclusive, and within the meaning of Federal law.
“34. Upon admission to the Union in 1861, Kansas succeeded the Federal Government to the rights of the bed of the Kansas River as a navigable stream.
“38. The area of land lying between the abandoned river channel south and east of Lot 2 of Section 33 and in the Southwest Quarter of the Northwest Quarter of Section 33, Township 10 South, Range 7 East and the present channel of the Kansas River contains heavily wooded areas. The trees in said areas are predominately cottonwood, American elm and Chinese elm. One tree has a measured circumference of 9 feet 7 inches, another 7 feet 8 inches and many others have a circumference of 7 feet or more. Many trees are 50 to 65 feet in height. The Kansas River has not moved through nor occupied this area between the abandoned river channel and the current channel during the entire life span of these large trees. But, at all times from 1857 until 1951, the channel of the Kansas River was located to the north and west of said heavy wooded area, including the area in which the above trees are located.
“39. Various trees in Lot 2, Section 33, Township 10 South, Range 7 East were examined and found to be the following ages: An elm tree approximately 300 yards northwest of the center of Section 33 was found to be 73 years old; a hackberry tree approximately 300 yards northwest of the center of Section 33 was found to be 65 years old; two cottonwoods approximately 300 yards northwest of the center of Section 33 were found to be 69 and 85 years old respectively; a sycamore tree approximately 150 yards northwest of the center of Section 33 was found to be approximately 100 years old. However, at all times from 1857 until 1951 the channel of the Kansas River was located to the north and west of said wooded area.
“40. That, as established by reasonable scientific certainty, the Kansas River could not have moved through the wooded area . . . between 1857 and 1951.”
CONCLUSIONS OF LAW
A. BURDEN OF PROOF
“1. The law presumes that the State Auditor and all other government officials performed their official duties in a manner required by law at all times.
“2. At all times subsequent to 1915 the Law of Kansas imposed a statutory duty upon the State Auditor to have surveyed and sell pursuant to any one of three statutory procedures the abandoned bed of any navigable stream other than accreted land in the State of Kansas. The three procedures are K.S.A. 72-2128 to 2141, inclusive; 72-2142, and 82(a)-201 to 205 inclusive.
“3. Since no State Auditor or any other official conveyed or attempted to convey any patent to any patentee a part of an abandoned bed of the Kansas River at the location in question at any time from the time of the United States survey in 1857 to the 1951 Flood, the law presumes that no such abandonment occurred by avulsion and the State of Kansas owned the land described in the Wood and Miller patents. The plaintiffs have the burden of proving otherwise.
“4. The burden of proving the invalidity of the patents and their ineffectiveness of conveying property described by each of them is upon the plaintiffs. . . .
B. ACCRETED LAND OF MILLER
“5. When there is a gradual and imperceptible accumulation of land on a navigable river bank by way of alluvion or reliction, the riparian owner is the beneficiary of title to the surfaced land.
“6. A riparian proprietor of land bounded by a stream, the banks of which changed by the gradual and imperceptible process of accretion or erosion continues to hold the stream as his boundary; if his land is increased, he is not accountable for the gain and if it is diminished, he has no recourse for the loss.
“7. The doctrine of accretion guarantees the riparian character of land by automatically granting to a riparian owner title to lands which form between the holdings and the river and thus threaten to destroy that valuable feature of his property.
“8. Defendants Miller, as owners of Lot 5, became the owner of all land that accreted to it prior to the 1951 Flood and thus, by accretion, and as owners of Lot 5, acquired ownership of the above-described tract by accretion.
“9. Defendants Miller, and their predecessors in title, for a continuous period of more than fifteen years, occupied the above-described real estate under a good faith claim of title; were in open, exclusive and continuous possession of said real estate, and by operation of K.S.A. 60-503, acquired ownership of said tract by adverse possession.
“16. Determination of the initial boundary between riparian fast lands and a riverbed which the state acquired under the equal footing doctrine — whereby new states, upon their admission to the Union, acquire title to the lands underlying navigable waters within their boundaries — is to be made as a matter of federal law rather than state law, but such determination is solely for the purpose of fixing the boundaries of the riverbed acquired by the state at the time of its admission to the Union; thereafter the role of the equal footing doctrine is ended, and the land is subject to the laws of the state.
“20. Where the boundaries of a navigable stream change by a process that involves erosion against one bank and the building up or accretion of another bank, ownership of the channel underneath the body of water between the banks at high water remains in the State of Kansas, and the riparian owner on the eroding side loses what ground is eroded, and the riparian owner of the accreted side acquires by accretion that land which accretes to the bank. (Green v. Ector, 187 Kan. 240, 356 P.2d 664; Schaake v. McGrew, et al, 211 Kan. 842, 508 P.2d 930; Rieke v. Olander, 207 Kan. 510, 485 P.2d 1335.)
“21. Where a change in the boundary of a navigable stream is accomplished by means of a sudden and violent eruption of water whereby a new channel is cut and the old one is abandoned, the State of Kansas retains ownership of the abandoned riverbed unless and until it conveys the same to a patentee by means of a patent by the exercise of those powers granted the auditor (Secretary of State under present law) pursuant to K.S.A. 72-2142, or K.S.A. 82 (a)-201 to 205, et seq. (State ex rel v. Turner, 111 Kan. 302, Pessemier v. Hupe, 121 Kan. 511; Pessemier v. Nichols, 153 Kan. 267.
“22. At the time of execution of the patents in question to the defendants, Miller and Wood, the State of Kansas had power and authority to convey its ownership in the abandoned riverbed of the channel of the Kansas River as it existed prior to the 1951 Flood, which abandonment occurred by a process of avulsion, by selling and conveying said property without notice to riparian owners pursuant to K.S.A. 72-2142 or 82a-201 to 205. Riparian owners were not denied due process for the reason that the State sold only property it owned and riparian owners were denied no property interest.
“23. On February 27, 1967, the State of Kansas owned all portions of the abandoned river channel as the boundaries of that channel existed immediately prior to the 1951 Flood at all locations material to this case ....
“24. . . . Both defendants Wood and Miller acquired title to the ground described by their respective [State] patents and both are entitled to have their title quieted against all other parties to this action with respect to their respective ownerships of said tracts.
“25. Plaintiffs are entitled to have their title to Lot 2 quieted against all parties to the action except real estate described and conveyed by the Wood Patent, the Miller Patent, and the property acquired by Millers by accretion to Lot 5 and adverse possession.
“26. Millers are entitled to have their title quieted against all named parties to the action with respect to that property described in the Miller Patent and that property described above which accreted to Lot 5 and which was acquired by Millers by adverse possession.
“27. Wood is entitled to have his title quieted against all named parties to the action with respect to that property described in the Wood patent.”
Judgment was entered accordingly.
THE CORVALLIS DECISION
The appellants contend that the trial court erred in refusing to apply the Bonelli decision as the law of this case, and that the court erred in applying the Corvallis ruling retroactively. They say that since the case was tried while Bonelli was controlling, the circumstances dictate that Bonelli should have been applied.
Article VI of the Constitution of the United States provides in part that:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . .”
In Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665, cert. denied 361 U.S. 846 (1959), we said:
“[U]nder this constitutional mandate the interpretation placed on the Consti tution and laws of the United States by the decisions of the supreme court of the United States is controlling upon state courts and must be followed.”
See also Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, cert. denied 382 U.S. 894 (1965). Bonelli decreed that the ownership of the abandoned channel of a navigable river was governed by federal, not state, law. That decision was controlling, and was binding upon the courts of this state under the supremacy clause, until it was overruled by Corvallis. The opinion in Corvallis spoke from the date on which it was handed down, and at once became the controlling law on the subject. This case had been fully tried but was yet pending. The trial court held a further hearing, at which the parties were free to offer additional evidence; it then applied state law, under Corvallis, to the established facts, and decided the case.
This was not a retroactive application of Corvallis, in the true sense of the word; it did not act upon or effect rights previously secured. The trial court simply applied the law, as construed in Corvallis, to the facts in the pending cáse. Trial courts are bound to apply the law as it exists when final judgment is entered. Appellants sustained no prejudice in the presentation of their case. We hold that the trial judge did not err in applying the Corvallis doctrine.
THE FINDING OF ACCRETION
Plaintiffs contend that the trial court erred in finding that all losses which occurred to Lot 2 by reason of the northwesterly movement of the Kansas river, from 1857 until the 1951 flood, were caused by accretion. They contend that some were perceivable and occurred at or following floodtide, and constituted avulsion; and therefore the State owned only the 1857 riverbed and not the riverbed which it sold and conveyed by patents to Miller and Wood in 1967.
Both parties agree that whether a river changes boundaries by avulsion or accretion is a question of fact, to be determined from the evidence in accordance with well established principles of law. In Schaake v. McGrew, et al., 211 Kan. 842, 844, 508 P.2d 930 (1973), we said:
“Avulsion is the sudden visible and violent movement of the channel due to storm, flood, or other known violent cause. Accretion is the slow and imperceptible deposit of alluvium or silt on one bank and erosion of the other bank which gradually changes the location of the river channel. (Fowler v. Wood, 73 Kan. 511, 85 Pac. 763; Wood o. McAlpine, 85 Kan. 657, 118 Pac. 1060, aff’d on rehearing 86 Kan. 804, 121 Pac. 916.)
“When a river or other watercourse is the boundary line between land owned by different parties, the boundary moves as the river’s location changes by accretion. If, however, the river suddenly changes its course by avulsion the boundary line remains at the old channel and is forever stabilized there. (Craig v. Leonard, 117 Kan. 376, 232 Pac. 235; Fowler v. Wood, supra; Wood v. McAlpine, supra.)
“. . . What constitutes avulsion is a question of law, but whether avulsion occurred is a question for the trier of fact and the determination so made, if based on substantial evidence, is binding on appeal. (State, ex rel., v. Stockman, 133 Kan. 7, 298 Pac. 649; Pessemier v. Hupe, 121 Kan. 511, 247 Pac. 435.)”
In the Schaake case, plaintiff had owned 300 acres on the south side of the Kansas river; due to the southeasterly movement of the river, this acreage was reduced to some 10 acres. We noted that the evidence presented a typical “erosion-deposition” situation; we said:
“The river and, hence, the natural boundary between appellants’ and appellees’ property has moved south and east diagonally through the greater part of two quarter sections of land since 1889, destroying appellants’ farm and increasing appellees’ farm as it moves. . . . Centrifugal force causes the current in the main channel to constantly scour and erode the south bank causing its collapse. The felled portions gradually wash away. While the south bank is being constantly destroyed, sand bars are extended from the north bank by deposits of alluvium from the slower-moving portion of the stream.” (pp. 843-844.)
Many of our cases have clearly stated the law relating to accretion and avulsion, and it would add little to this opinion to set them all forth here. Perhaps one of the most helpful statements comes from the early case of Wood v. McAlpine, 85 Kan. 657, 118 Pac. 1060 (1911) where, at the conclusion of a lengthy discussion of the subject, we said:
“It is fairly clear that the doctrine to be deduced from the foregoing authorities ... is that in order to constitute avulsion the change in the channel or bank must be considerable, visible, violent, sudden and unusual, and that a change not properly characterized by these adjectives must be classed as erosion as distinguished from avulsion.” (p. 668.)
In Wood v. McAlpine, a central issue was whether , the river bank was cut by avulsion or erosion. There was evidence that the river frequently undercut the bank, washing out a strata of sand, and causing huge chunks of bank to fall into the river, making noises like a cannon. Holding that the trial court erred in its instructions, we said:
“It is of necessity difficult, if not impossible, to fix the dividing line between avulsion and erosion. Suddenness, visibility, rapidity, violence, quantity and unusualness mark the one as their absence marks the other. In view of the conditions shown, however, the jury should have been given to understand that, considering the character of the bank, and the characteristics of the stream, including the testimony as to its habit of ‘eating under’ and its effect, they must, to find avulsion, determine from all the evidence that the destruction was sudden, rapid, visible, violent, of substantial amount, and in a manner unusual along the Missouri river, and these elements were not made sufficiently plain and prominent by the instructions given.” (p. 672.)
It is clear, under the long established law of this state, that the State of Kansas owns the riverbed of navigable rivers within the boundaries of Kansas, and that the Kansas river is a navigable river; that where the course of a river moves slowly by accretion, the state continues to own the riverbed while the riparian owner on one side may lose land which is eroded or washed away, and the riparian owner on the other side may gain land by the process of accretion, or the gradual buildup of land on his or her side of the river. On the other hand, when a navigable river changes course by avulsion, the state must acquire title to the new channel by purchase or condemnation; it retains title to the abandoned channel, which it may sell; and the holdings of the owners of land riparian to the old channel are unaffected by the avulsive change.
The process of erosion-accretion is gradual; while the erosion process may be visible, it is something that occurs naturally, slowly, and regularly; the accretion process is gradual and imperceptible; and a new channel is never suddenly formed.
The process of avulsion, on the other hand, is characterized by a sudden or rapid change; a new channel is formed, usually by a violent eruption or major flood; and there is visible evidence thereafter of an abandoned river channel.
It is not the duty or function of this court to weigh conflicting evidence, to pass upon the credibility of witnesses, or to redetermine questions of fact. We are concerned only with evidence which supports the trial court’s findings and not with evidence from which contrary findings might have been made. Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406 (1975).
Our earlier cases have not discussed the matter of burden of proof, nor have we adopted a presumption as to whether a change in a river’s course is presumed to have occurred by accretion or avulsion. Cases in other jurisdictions have held that where there is a dispute as to whether changes in the course of a river resulted from accretion or avulsion, the presumption is that the changes resulted from accretion, and one who claims that the change was by avulsion has the burden of showing the avulsion. Pannell v. Earls, 252 Ark. 385, 483 S.W.2d 440 (1972); Roe v. Newman, 162 Mont. 135, 509 P.2d 844 (1973); Municipal Liquidators, Inc. v. Tench, 153 So.2d 728 (Fla. App. 1963); Schulz v. City of Dania, 156 So.2d 520 (Fla. App. 1963); Ark. Land & Cattle v. Anderson-Tully, 248 Ark. 495, 452 S.W.2d 632 (1970); Woodland v. Woodland, 147 N.W.2d 590 (N.D. 1966); and see 65 C.J.S., Navigable Waters § 86(c); 93 C.J.S., Waters § 83; and 78 Am. Jur. 2d, Waters § 427. The Pannell court said:
“[W]hen land lines are altered by the movement of a stream, the weight of authority, both state and federal, appears to recognize a strong presumption, founded on long experience and observation, that the movement occurs by gradual erosion and accretion rather than avulsion. United States Gypsum Co. v. Reynolds, 18 So.2d 448 (1944); Dartmouth College v. Rose, 133 N.W.2d 687 (1965); Kittendge v. Ritter, 151 N.W. 1097; Bone v. May, 225 N.W. 367.” (p. 388.)
This general rule is sound and we adopt it.
The only evidence before the trial court in the case at hand as to the period between the 1857 government survey and the flood of 1903 was the testimony of Dr. Shenkel, a geologist, and Fred Deneke, a forester, and their testimony was primarily based upon the location and age of certain trees which were growing near the center of section 33. The age of the trees, and certain high ground nearby, caused these experts to conclude that the channel of the river was south of the trees, prior to 1903, and that it moved northwesterly by avulsion rather than accretion, since the river could not have moved slowly through that area. The difficulty with the testimony of these experts was that neither had accurately located the center of section 33. Defense witnesses disputed the location of the trees with reference to the center of the section, and indicated that certain of the trees were south of the center of the section; thus the large trees could have been at the south edge or on the south bank of the river channel as it existed in 1857. There was direct testimony, by witnesses who had observed the river from 1903 to the time of the 1951 flood, to the effect that there was no time when a river channel was abandoned during that period; and that although there was “cave-in” on the Murray side, and the river channel became wider, it did not relocate at any time. Upon the record before us we hold that there is substantial competent evidence to support the trial court’s finding that the movement of the river between 1903 and the 1951 flood was by a process of erosion and accretion, and not avulsion. As to the period between 1857 and 1903, in the absence of evidence it is presumed that the river moved by accretion and erosion; whether the evidence of the expert witnesses was sufficient to overcome that presumption was an issue of fact for the trial court. Since the facts upon which the opinions were based were disputed, we cannot reweigh that evidence. Accordingly, the trial court’s conclusion must stand.
THE BURDEN OF PROOF
The trial court placed the burden of proof on plaintiffs; they contend this was error. Plaintiffs claimed that the Kansas river changed its course between 1857 and 1951 by avulsion, rather than by accretion. Under the rule stated above, there is a presumption that changes are by erosion and accretion unless the contrary is shown. The party claiming avulsion has the burden of proof on that issue.
Plaintiffs contend that the patent to Lot 2 predates the state patents under which Wood and Miller claim, and therefore the burden of proof should have been on Miller. The patents, however, covered different land. The federal patent did not purport to cover the riverbed; the state patents covered the abandoned riverbed, and no part of the land lying north of it. The state patents were issued pursuant to K.S.A. 72-2142 (since repealed). Plaintiffs’ argument that the land sold by the state is not within the meander lines as shown by the 1857 survey fails in view of the fact that the “meander line” limitation contained in an earlier statute is not contained in K.S.A. 72-2142. Absent some facial invalidity, the patents are presumed valid. We conclude that the trial court did not err in placing the burden of proof on plaintiffs.
THE NOTICE ISSUE
Plaintiffs claim that under Kansas statutes and the due process clause, they were entitled to notice before the state sold the abandoned riverbed. The statute under which the land was sold, K.S.A. 72-2142, provides in substance that the state auditor shall cause the abandoned riverbed of any navigable stream to be surveyed, and shall sell it for the best price obtainable. The statute contemplates a private sale, not a public auction, and it does not require the giving of public or other notice of survey or sale. An earlier statute, K.S.A. 72-2130 (since repealed), provides a wholly different method of survey and sale; that statute requires either actual or publication notice upon the occupants of all contiguous lands, before the survey is undertaken. The statutes are alternative. We hold that the statutes did not require notice in the matter before us.
Was the State, as a landowner, required by the 14th Amendment to the United States Constitution to give notice to all adjoining landowners before selling the abandoned riverbed? We think not. The river channel had moved; plaintiffs’ land, Lot 2, was contiguous to the abandoned bed, but it was no longer riparian to the Kansas river. There were no longer any water rights involved, and no expectation of accretion. Plaintiffs were simply adjoining landowners. They had no property interest in the riverbed and no right to control or to have prior notice of its survey or sale. Plaintiffs’ loss of a part of Lot 2 occurred over a long period of years by reason of the erosive action of the Kansas river. There was no taking by the State and no conveyance or cutting off of any right of plaintiffs by the 1967 sale and conveyance. We hold that prior notice of survey or sale was not required by either Kansas statute or the federal Constitution.
THE ADVERSE POSSESSION ISSUE
The trial court held that the Millers acquired certain land on the south or right-hand bank of the river by adverse possession. The court also held that the Millers acquired the same land as an accretion to their Lots 3 and 5. The latter holding was correct; and in view of that ruling, the adverse possession issue is moot.
THE SUMMARY JUDGMENT ISSUE
The State of Kansas, joined as a defendant, disclaimed any present interest in the realty at issue and moved for summary judgment. The trial court granted that motion. Following trial, the court quieted title as against the State. In view of the final determination of the litigation we find no error.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This is an action against the state highway commission to recover damages on account of a defective highway. Judgment was for plaintiff, overruling a demurrer to the petition. Defendant appeals.
The injury occurred August 30, 1931. Ninety-day notice was served November 28, 1931. Petition was filed November 23, 1933. The action was brought under the provisions of R. S. 1933 Supp. 68-419. That section is one providing for liability of the state to one injured on account of a defect in a state highway. The part of the statute in which we are interested .is as follows:
“Provided, That no such action shall be maintained unless within ninety days after the sustaining of such damage, written notice, stating the date, when, and place where such damage was sustained, the name and correct post-office address of the person sustaining such damage, and the character of the damage sustained, shall be served upon the director of highways, either in person or by registered mail at his office in Topeka, Shawnee county, Kansas: Provided further, That the action must be commenced within two years.”
It will be noted that two years, two months and twenty-one days elapsed between the injury and the filing of the petition. Not that much time had elapsed, however, since the filing of the ninety-day notice. Hence if the running of the statute began when the notice was filed the demurrer was correctly overruled, and if it started when the injury occurred the demurrer should have been sustained. Both sides agree that the statute started when the cause of action accrued. Plaintiff argues that since the action cannot be brought unless the notice is served the giving of notice constitutes a condition precedent to institution of the action and this act must be performed before right to bring the action comes into being. Defendant, on the other hand, contends that while notice is a condition precedent to filing of the action it is not a condition precedent to accrual of the cause of action and is simply a preliminary step referring to the remedy.
It will be noted the provision of the statute is the action must bé begun in two years. This provision modifies the portion of the statute which provides for the liability. The action could be begun the next day after the injury occurred provided the notice is served first. The notice does not have any relationship to the liability. It is simply something that must be done preliminary to filing suit. This court has considered cases where the question was, When did the cause of action accrue?
In McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, the action was for permanent damages to the real estate of plaintiff caused by the erection of a refinery and the discharge of sewage therefrom. The plaintiff had served notice within less than two years before the filing of his action. The court held the action should have been brought within two years after the erection of the sewer, when plaintiff was first able to ascertain that his land was damaged. The language in which we are interested is as follows:
“As the sewer system constructed by the city and the refinery constructed by the oil company were permanent in their nature, and as the flow of the sewage and refuse from them was designed to continue indefinitely in the future, a cause of action for permanent damages arose when the sewage and other impurities were first emptied into the stream.” (p. 43.)
Here we have a holding that the cause of action accrued when the damage was sustained.
In the case of Campbell v. City of Wichita, 101 Kan. 817, 168 Pac. 833, this court considered the question of when a cause of action had accrued. It was an action for damages, and it was claimed that the city had disturbed the plaintiff property owner’s means of ingress and egress. The court said:
“There seems to be no dispute that on September 9, 1912, the actual work was begun and a sign put up and the street marked ‘Street closed, ordinance No. 4066.’ ... At this point of time, when, the ordinance having been enacted and accepted, the actual work of constructing the barrier was begun and the public were notified by the posting up of a sign that the street was vacated, the plaintiff’s cause of action accrued. . . . The amount of damages was just as patent and susceptible of proof then as at any subsequent time.” (p. 821.)
The rule is stated in 37 C. J. 955 as follows:
“Where, although the cause of action itself has accrued, some preliminary step is required before a resort can be had to the remedy, the condition referring merely to the remedy and not to the right, the cause will be -barred if not brought within the statutory period; therefore, the preliminary step must be taken within that period.”
The authorities upon which plaintiff depends deal with the following rule from 37 C. J. 955:
“Where the right to sue, to resort to the particular remedy, . . . depends upon . . . the establishment of particular conditions upon which the peculiar liabilities may be enforced, the running of the statute begins from the . . . establishment of such conditions, and not until then.”
The giving of the notice in our statute is not the establishment of particular conditions. It is merely a preliminary step in the bringing of the action.
To the same effect is White v. King County, 103 Wash. 327; also Brehm v. Mayor, Etc., of N. Y., 104 N. Y. 186; also, People v. California S. Deposit, Etc., Co., 41 Cal. A. 727.
The test is whether the serving of the notice is a part of the cause of action or merely a step in the remedy. We have concluded that it was a procedural step in the remedy and that the cause of action accrued when the damages were sustained. Hence the statute started to run then and the demurrer should have been sustained.
The judgment of the trial court is reversed with directions to sustain the demurrer.
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The opinion of the court was delivered by
McFarland, J.:
Plaintiff-appellant Vernon L. Steele contends the district court erred in denying his motion for class action certification and in dismissing the case in its entirety. We do not agree.
In 1958, Steele purchased a $3,000 endowment insurance policy from defendant Security Benefit Life Insurance Company (hereinafter SBL). A like policy in the amount of $1,000 was purchased by Steele from SBL in 1966.
Each policy provided that upon default the policy owner had 60 days (90 days by company practice) to select one of three nonforfeiture provisions:
(A) Policy could be surrendered for net cash value.
(B) Policy could be continued as nonparticipating, paid-up, reduced ordinary life.
(C) Policy could be continued for a certain length of time as nonparticipating, paid-up term insurance in an amount equal to the face value of the policy.
If the policyholder did not elect one of these options, the automatic option was (C).
Until 1972, premiums on this type of policy were collected by SBL by sales agents visiting the homes of policyholders. The sales agents carried with them loan forms which enabled policyholders to borrow against their policies to pay the premiums. This, for all practical purposes, was a fourth “option” not specified in the policy. If this fourth option were elected, the policy as written remained in full force. Under the three options specified in the policy the insurance was either surrendered or converted to a different type of insurance with concomitant reduction in benefits. In 1972, SBL determined the whole procedure of personal collection of premiums was no longer economically feasible and issued passbooks to holders of such policies.
In 1973, the premium paying procedure was again changed and passbooks were eliminated. Under the procedure from 1973 to date a periodic premium notice is sent and the policyholder then remits payment. Collection of premiums is no .longer accomplished by personal contact and the fourth “option,” a loan against the policy to pay the premium, is no longer readily available. To compensate for this loss SBL instituted a new procedure whereby, upon a default where a policyholder did not specify one of the three policy options, an automatic premium loan (APL) was made, thereby keeping the policy as written in full force and effect. Upon making an APL the policyholder was sent a notice of the action. It was and is the policy of SBL to reverse the APL process upon request of the affected policyholder and institute whichever one of the three listed options the policyholder designates.
In 1974, Steele defaulted on a premium on each policy, the APL procedure was followed, and Steele was notified of the action. Steele did not express dissatisfaction with the procedure or request a listed policy option. On May 5, 1975, Steele’s attorney contacted SBL and asked for information as to how the premium payments had been handled. SBL explained the procedure and, in accordance with its operating procedure, SBL offered to reverse the APL process and institute whichever listed policy option Steele desired. Steele’s attorney stated he would discuss the matter with his client. Four days later (May 9, 1975) Steele instituted this class action, seeking $2,000,000 actual damages and $10,000,000 punitive damages against SBL on the ground the APL procedure was wrongful.
In August, 1975, and November, 1975, while this action was pending, the premiums on both policies again became due and were not paid. Counsel for SBL sent Steele’s counsel a notice of default and a request for instruction. The August 21, 1975, letter is reproduced herein:
“My client’s records indicate that the premium due August 1, 1975, on Mr. Steele’s policy number 3501107 has not been paid as of August 20 and is, therefore, nearing the end of the thirty-day grace period. Since this is one of the policies in suit and since your client so strongly objects to SBL’s past handling of such situations, I have been asked to correspond with you concerning same.
“If your client does not intend to pay the premium, please contact me prior to the end of August to discuss this matter. Should the grace period lapse without our having heard from you, the policy will revert to extended term insurance, subject to Mr. Steele’s right to elect some other option within sixty days of the premium due date.
“I assume it goes- without saying that any correspondence, oral or written, concerning this policy or any other matter related to the suit will be directed to me as attorney for SBL.”
No response was received to the letter and the policies reverted to option (C) of the policies — extended term insurance — as of August, 1974, the date of the first APL.
In April, 1976, Steele filed a motion for certification of the case as a class action pursuant to K.S.A. 60-223. Apparently, this motion was never heard. Steele’s attorney proceeded with discovery. In response to a letter from the court to counsel, inquiring as to the status of the case, Steele’s counsel filed an amended motion to certify the action as a K.S.A. 60-223(fo)(2) class action, which stated, inter alia:
“Thus, the defendant corporation, having been caught in violation of its contract, and after the lawsuit for such violation had been filed, clumsily attempts to manipulate its records and its computer so as to avoid the impact of the lawsuit by rectifying its flagrant contract violation. But this is so for the lead plaintiff only, and the class yet waits for such rectification. It is precisely this rectification that a B-2 class action has been designed to effectuate at the hands of Kansas courts by the enactment of K.S.A. 60-223.”
Stripping away Steele’s diatribe against SBL, we see even plaintiff admitting his alleged individual problem with SBL has been rectified, but the class awaits “rectification.”
The district court held:
“On April 23, 1976 plaintiff filed his first motion for the determination and certification of a class action pursuant to K.S.A. 60-223. In this motion no reference is made to injunctive relief but emphasis is placed rather upon the claims for monetary damages. Defendant filed an extensive brief in opposition to the class certification on August 4, 1976 and the Court continued the matter for further discovery prior to ruling on the motion. In its brief in opposition to the original motion for class certification defendant raised a number of pertinent issues, the principal one of which goes to the ‘commonality’ requirement of the class action statute. In this connection, defendant pointed out to the Court that each debit policy holder upon defaulting in the payment of premiums was furnished with the notice mentioned above. Some elected certain of the contract options and others elected to do nothing. Many policy holders live outside the state of Kansas. Obviously, a number of pertinent legal questions differentiating plaintiff from other members of his putative class appear from even a cursory analysis of the circumstances. First, has plaintiff or other members of his alleged class acquiesced in the suggested modification of the contract between the parties. Second, has plaintiff or other members of his alleged class waived any defenses by their inaction following the receipt of the notice. Third, did members of the alleged class actually receive notice in each case. Fourth, where the value of the policy is shown to be greater under the company’s gratuitous action can plaintiff or other members of his alleged class show damage and if so would this question not be different for each policy holder. Fifth, varying terms of applicable statutes of limitation would have to be determined in each separate instance. Sixth, what conflict of laws, rules would differentiate members of the class where the notice was received by out of state policy holders and acted on there. Other questions may also be present, but these occur immediately to the Court. Frankly, the Court is persuaded that this action cannot proceed as a class action because the commonality element is not present. Each policy holder’s claim will have to be litigated separately to determine whether the various defenses of the company are applicable, whether the plaintiff in each action has actually suffered damage and the amount of it, and the extent to which the other questions mentioned apply, if at all. Consequently, on this point alone, the Court is fully satisfied that the motion to certify tfie class should be overruled.
“Subsequent to the original motion to certify the class plaintiff has completed certain discovery and has now filed, on November 18, 1977, a second motion to certify a ‘B-2’ class. In this motion, plaintiff has apparently abandoned his claim for monetary relief altogether and has now requested only injunctive relief requiring the defendant to reverse its bookkeeping entries on debit policies to effect the selection of options mentioned above, in all situations where the policy holder did not within sixty days following the default in the payment of premium elect a different option set out under the contract. To this new motion defendant has again filed an extensive reply the thrust of which is to demonstrate rather dramatically that plaintiff’s claim for relief in this matter is now entirely moot for the reason that all transactions on policies owned by plaintiff have been reversed pursuant to his request, thus to effect the selection of option three which plaintiff contends is required under the contract. In this connection, the Court is satisfied that the factual allegations in defendant’s memorandum of points and authorities in response to plaintiff’s motion to certify a B-2 class are true and correct and that the authorities there cited are entirely on point and persuasive. Rather than burdening this record with a reiteration of those materials, the Court simply adopts by reference as the opinion of the Court that memorandum of the defendant as further reasons for overruling this motion to certify this class. Furthermore, the Court is constrained to note that certifying this action as a class action could have a devastating effect upon policy holders in situations roughly similar to that of the plaintiff. Where it has been conclusively demonstrated to the Court that the option provided by the company provides to the policy holder a contract of insurance of substantially greater value than that which would exist under option three, the certification of this action as a class action might well result in diminishing the insurance assets of plaintiff’s alleged class in situations where they had relied on the company’s notice to advance the policy loan.
“Finally, although no motion has been presented on this point the Court is fully satisfied that this plaintiff’s claim is wholly moot, as set out in its findings above, and is therefore persuaded that this action should be dismissed in its entirety even as to plaintiff’s individual claim. Again, in this connection, the Court reiterates its findings and conclusions now adopted by reference in defendant’s memorandum on the question of mootness. There being no triable issue remaining before the Court, therefore, this action is dismissed in its entirety and the costs are hereby taxed to the plaintiff.”
Steele contends the district court erred in denying class certification and in dismissing the case in its entirety.
K.S.A. 60-223 provides:
“(a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
“(b) Class actions maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(I) The prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fait and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) The interest of members of the class in prosecuting or defending separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against members of the class; (C) the appropriate place for maintain ing, and the procedural measures which may be needed in conducting, a class action.
“(c) Determination by order whether class action to be maintained; judgment; actions conducted partially as class actions.
“(1) As soon as practicable after the commencement and before the decision on the merits of an action brought as a class action, the court shall determine by order whether it is to be maintained as such. Where necessary for the protection of a party or of absent persons, the court, upon motion or on its own initiative at any time before the decision on the merits of an action brought as a nonclass action, may order that it be maintained as a class action. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.”
The Kansas class action statute is patterned after Fed. R. Civ. P. 23 and we have traditionally followed the interpretation of federal procedural rules after which our own have been patterned. Beaver v. Chaffee, 2 Kan. App. 2d 364, 371, 579 P.2d 1217 (1978).
Prior to the motion for class certification, Steele’s alleged problem with SBL had been rectified. By the time for the hearing he admittedly had been placed in the same situation as if APL had never existed. By his amended motion to certify he was seeking the same relief for the class that he had already received.
It is clear that a noncertified class cannot succeed to the adversary position formerly occupied by the no longer aggrieved representative plaintiff whose own claim has become moot. Vun Cannon v. Breed, 565 F.2d 1096, 1098 (9th Cir. 1977), and cases cited therein. In Allen v. Likins, 517 F.2d 532, 535 (8th Cir. 1975), it is stated:
“We recognize that a class action may continue to be a ‘case’ or ‘controversy’ under Art. Ill and the Declaratory Judgment Act if the claim of the named plaintiff becomes moot after class action certification. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Here, of course, the named plaintiff’s claim became moot before the district court had certified the case as a class action pursuant to Fed. R. Civ. P. 23 (c). Thus, the dismissal of the entire action must be affirmed unless the district court failed to rule on plaintiff’s motion for class action certification ‘as soon as practicable after commencement of the action’ as is required by Rule 23 (c).”
Most cases allowing a class action to continue after the named plaintiff is no longer aggrieved involve factual situations wherein the mooting of the named plaintiff’s claim occurred after class certification. For example, see Beaver v. Chaffee, 2 Kan. App. 2d 364. There is no claim that the district court delayed certification. In fact, it was the court that prodded Steele’s attorney into moving the case toward hearing of the certification issue. Further, this case does not involve a situation wherein a defendant is attempting to avoid class-wide responsibility for its wrongful acts through deviously cutting the ground out from under the named plaintiff by correcting the wrong done to the named plaintiff (notwithstanding Steele’s aforementioned allegations to the contrary).
Steele was the sole named plaintiff. Prior to the hearing on his motion to certify the class as a K.S.A. 60-223(fo)(2) class action, he, individually, had already obtained the relief he was seeking for the class. His claim was moot and he was no longer a member of the class whom he was purporting to represent.
Under the circumstances herein we must conclude that the district court did not err (1) in concluding Steele’s claim against SBL was moot; (2) in denying class certification; or (3) in dismissing the action in its entirety.
Properly used, class actions serve a legitimate need. The average person may, through class action, band together with others in the same position to seek redress for genuine wrongs from corporate giants and others in superior financial position. Absent the class action tool, all too often the cost of individual suits for redress would be prohibitive. Because class action statutes are intended to make the tool available for many types of wrongs, the language of such statutes is broad. This very broadness has led to abuses in class action litigation and these abuses are the cause of the growing national controversy over class actions.
A notable observation on these abuses is contained in O’Kelley, Class Actions: Proposals for New Rules of Professional Responsibility, 5 Litigation 25 (Winter 1979), as follows:
“Too often, boilerplate class allegations are used indiscriminately by lawyers for the purpose of intimidating defendants into settling with the named plaintiffs in the early stages of the litigation. Lawyers know that many defendants will prefer to settle a class suit in order to avoid the possibility of class-wide liability, regardless of the sometimes questionable merits of the underlying cause of action. By obtaining a ‘strike suit’ or ‘nuisance value’ settlement, the unethical attorney is able to reap tremendous profit with little or no effort or ability. Even where class allegations are not just a calculated means of extracting an undeserved settlement, but are legitimately asserted, the named plaintiffs and their counsel are often tempted into sacrificing the interests of the previously asserted class for private gain, by agreeing to dismiss ‘their’ action voluntarily for a cash settlement, for which counsel seeks a substantial fee.”
See also, Manual for Complex Litigation, § 1.41, p. 46 (1978).
In order to assist in reducing abuses in class action litigation it is essential that trial judges be afforded substantial discretion in the decision-making process as to the maintenance of a class action. See Connolly v. Frobenius, 2 Kan. App. 2d 18, Syl. ¶ 3, 574 P.2d 971, rev. denied 225 Kan. 843 (1978).
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, James L. Reed, appeals from convictions by a jury of rape (K.S.A. 21-3502) and aggravated kidnapping (K.S.A. 21-3421). The critical issue at trial was the identification of defendant as the perpetrator of the crimes charged.
Summarized, the State’s evidence disclosed that on the evening of June 16, 1978, the victim was walking to Stormont-Vail Hos pital in Topeka where she was employed as a nurse’s aide. Her hours of employment were from 11:00 p.m. to 7:00 a.m. When she was about three blocks from the hospital she was accosted by a man, armed with a knife, who grabbed her around the neck and forced her into an automobile.
The assailant drove through the city to southeast Topeka where they reached a place described by the victim as a grassy, weedy field. The assailant was armed with a knife during the entire period and also threatened the victim with a gun but never produced it. The assailant forced the victim to remove her clothing, walk across the street to a field and lie down in a place where the weeds were high where he raped her. The assailant then drove the victim to a point a few blocks from the hospital and released her.
The victim ran to the hospital and informed her supervisor of the events which had occurred. A “rape kit” examination was immediately performed and the victim’s clothing was taken. The victim was then taken to the Topeka Police Department where she gave a statement to Detective Mosby. Additional facts will be developed as they are relevant to the points raised.
As his first point of error defendant contends the trial court erred in denying defendant’s motion to admit expert testimony in the field of eyewitness identification. By pretrial motion defendant sought the admission of the testimony of Dr. Lawrence Wrightsman, Chairman of the Department of Psychology at Kansas University, who was described by counsel as “an expert in the field of eyewitness identification.” The expert testimony was offered to show the jury reasons why an identification such as the one in the present case could be unreliable. Defendant takes the position that juries place too much weight on identification testimony and that expert testimony was necessary to show that scientific studies have drawn into question the reliability of such testimony under facts similar to this case. Defendant makes no claim that the victim suffered from any specific organic or emotional disability that would have affected the reliability of her identification of defendant. The trial court rejected the proposed evidence.
The admissibility of expert opinion testimony is controlled by K.S.A. 60-456(b), which reads as follows:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” Emphasis supplied.
Under the statute we have repeatedly held that the qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial court. Spraker v. Lankin, 218 Kan. 609, 613, 545 P.2d 352 (1976); In re Estate of Minney, 216 Kan. 178, 182, 531 P.2d 52 (1975); Hubbard v. Havlik, 213 Kan. 594, 607, 518 P.2d 352 (1974).
The basis for the admission of expert testimony is the need to assist the jury under the facts of the particular case. Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978). Concerning limitations on the admissibility of the testimony of an expert witness, we held in Massoni v. State Highway Commission, 214 Kan. 844, Syl. ¶[ 3, 522 P.2d 973 (1974):
“Opinion testimony is not without limitations and although an expert witness may be permitted to give an opinion bearing on the ultimate issue he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.”
The question presented in the instant case is whether the proposed expert testimony would have materially aided the jury or whether questions relating to the reliability of the victim’s eyewitness identification testimony are within the normal experience and qualifications of the jury. While the precise question here has not been before this court we have considered, generally, the limitation of expert testimony with respect to the credibility of witnesses. We held in Smith v. Estate of Hall, 215 Kan. 262, Syl. ¶ 3, 524 P.2d 684 (1974):
“An expert’s opinion in a proper case is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence.”
The identical question was recently considered by the 10th Circuit Court of Appeals in United States v. Brown, 540 F.2d 1048 (10th Cir. 1976), cert. denied 429 U.S. 1100 (1977). The case involved the eyewitness identification of a defendant in the robbery of a savings and loan office. The proffer, as in the instant case, was the testimony of a professor of psychology who was described as an expert in the field of eyewitness identification. In affirming the trial court’s exclusion of the testimony the court relied on the proposition that expert testimony, while not limited to. matters of science, art or skill, cannot invade the field of common knowledge, experience and education of laymen and that it cannot usurp the function of the jury if such testimony touches the very issue before the jury. A similar result is reached in other published opinions. See United States v. Watson, 587 F.2d 365 (7th Cir. 1978); United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973); Jones v. State, 232 Ga. 762, 208 S.E.2d 850 (1974). Defendant has been unable to cite a published opinion which endorses the use of expert identification opinion evidence in a case such as this.
We find no error in the trial court’s refusal to admit the testimony in question under the facts and circumstances shown.
In his second point defendant claims the trial court erred in denying defendant’s pretrial motion to suppress testimony relating to a precharge photographic lineup. Defendant argues the lineup was impermissibly suggestive and conducive to misidentification.
The identification in question took place on August 7, 1978. Detective Mosby asked the victim to view certain photos. There were two stacks of photos, five black and white, and six colored. Detective Mosby shuffled the black and white photos first and handed them to the victim. She looked through the photos momentarily and then identified one. The photograph was of the defendant. The victim was then handed the six colored photos. She once again identified defendant. No indication was made to the victim that she had picked the right man after she looked at the black and white photos.
Defendant’s principal argument that this photo lineup was impermissibly suggestive is based on the fact defendant’s photograph is the only one which appeared in both sets. Defendant notes the statement by the United States Supreme Court in Simmons v. United States, 390 U.S. 377, 383, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968), that the danger of misidentification is increased if the picture of one person recurs in several photographic displays. The trial court concluded that the photographic lineup may have been suggestive for this reason, but in view of the strength of the identification and the totality of the circumstances, the court determined that there was not a substantial likelihood of irreparable misidentification and the testimony was admitted at trial.
Lineups that are unnecessarily suggestive or conducive to irreparable mistaken identification are forbidden by the due process clause of the federal constitution. State v. Clark, 218 Kan. 726, 544 P.2d 1372, cert. denied 426 U.S. 939 (1976); State v. Colin, 214 Kan. 193, 519 P.2d 629 (1974). However, we do not find the procedure followed here to have been unnecessarily suggestive. This is not a case where a suspect’s picture is placed in one photographic lineup, not identified, and then the same picture placed once or twice again in another lineup as in Simmons v. United States, 390 U.S. at 383. Here the victim identified defendant’s picture in the first group of photographs. Double-checking by exhibiting the second group to the victim was not suggestive but served to protect against misidentification. Even if the lineup procedure here may have been unnecessarily suggestive, as suggested by the trial court, the victim’s testimony disclosed a high degree of reliability in the identification. Her testimony revealed a high degree of attention during the critical time; she was with defendant for at least 30 minutes and for a considerable part of the time was in face-to-face confrontation, she remembered conversation and actions that took place, and she was able to describe the defendant and to give an accurate description of the clothes he was wearing. Her testimony fully meets the tests for the likelihood of misidentification set out in Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972). See State v. Nesmith, 220 Kan. 146, 147, 551 P.2d 896 (1976). We find no error in the trial court’s ruling in this regard.
Defendant next contends the trial court erred in admitting evidence relating to pubic hairs obtained from one Charlene Chambers, a girlfriend of appellant. As previously mentioned a “rape kit” was taken of the victim shortly after the assault. When the victim’s pubic hair was combed a Negroid pubic hair was found. A forensic chemist for the Kansas Bureau of Identification determined that the hair did not come from defendant. In an attempt to determine where the hair had come from, the State obtained a pubic hair sample from Charlene Chambers. The forensic chemist compared this sample with the hair found in the “rape kit” examination and concluded that there were both similarities and dissimilarities, such that Charlene Chambers could not be excluded as a source of the hair.
It was the prosecution’s purpose in offering the evidence to show that the hair found in the examination might have been transferred from Ms. Chambers to defendant and then from defendant to the victim. Ms. Chambers testified at trial that she had lived with defendant and had been sexually intimate with him during a period from October, 1977, through August, 1978. Ms. Chambers testified that she did not recall having sexual relations with appellant at all during the months of June or July of 1978; that she had been sick during this period. However, she would not rule out the possibility she had had sexual relations with appellant during this time. The only period she was able to positively exclude was during her hospitalization from July 25 to September 19. Defendant contends Ms. Chamber’s testimony and the evidence of the sample taken from her should have been excluded as irrelevant.
Relevant evidence is defined in K.S.A. 60-401(b) as “evidence having any tendency in reason to prove any material fact.” In discussing relevancy we have frequently said that to be admissible evidence must be confined to the issues but it need not bear directly upon them. To render evidence of collateral facts competent there must be some natural or logical connection between them and the inference or result they are designed to establish. State v. Brown, 217 Kan. 595, 538 P.2d 631 (1975); State v. Fagan, 213 Kan. 587, 518 P.2d 552 (1973).
In this case the fact the disputed evidence was offered to prove was material. There was an unidentified pubic hair found after the rape. It did not match that of defendant. It was incumbent upon the State to attempt to establish where it came from. Since it could have come from Ms. Chambers, who was known to have had sexual intercourse with defendant, there was linkage, though tenuous, with the crime sought to be proved. Although the probative value of the evidence offered may not have been substantial, it did have some tendency to prove a disputed material fact; beyond this the decision whether or not to admit it was for the trial court. It is a venerable rule that the admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules (State v. Nemechek, 223 Kan. 766, 576 P.2d 682 [1978]; State v. Baker, 219 Kan. 854, 858, 549 P.2d 911 [1976]).
Finally defendant claims the trial court erred in not granting defendant’s motion to dismiss at the close of the State’s case due to the insufficiency of the evidence. The defendant is really complaining about the fact the jury did not accept his testimony. There was substantial evidence pointing to the guilt of defendant. There was a close prior description which fit defendant and a positive in-court identification given by the victim who also gave an accurate, detailed description of the automobile her assailant was driving. A knife found on defendant at the time of his arrest was identified by the victim as looking very much like the one used in the attack. The “rape kit” examination positively disclosed that sexual intercourse had taken place.
There was ample evidence to lead a rational trier of fact to find guilt beyond a reasonable doubt. See State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979).
The judgment is affirmed.
Approved by the Court.
Fromme, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by defendant Jerry Mitchell from jury trial convictions of burglary (K.S.A. 21-3715), and felony theft (K.S.A. 21-3701, now 1978 Supp.).
On April 30, 1978, a burglary and felony theft occurred at the C-K Supply Company in Hutchinson, Kansas. During the burglary, a walk-in safe was broken into with the use of tools taken from another part of the premises. There were indications that the burglar was familiar with the burglarized business. In the rubble around the safe, a slip of paper was found on which some words and numbers had been written. The paper was identified as a form provided by the Hutchinson Job Service Office. It was a form used by individuals seeking jobs to write down relevant information on jobs available. The information on the form referred to a truck driving job in Satanta, Kansas. The police learned that defendant had been one of three applicants for the Satanta job. By search warrant the police secured job applications filled out by defendant at three other businesses. The handwriting on these applications was similar to that on the form found at the burglary scene, but the K.B.I. needed additional handwriting exemplars for a positive identification. An assistant county attorney obtained a court order requiring defendant to prepare additional handwriting exemplars. Defendant complied with the order and the K.B.I. positively identified the handwriting on the job form as that of defendant. Defendant was then charged and arrested on the crimes herein. Defendant sought to suppress the handwriting exemplars and the testimony of the K.B.I.’s handwriting expert as far as it was based on the court-ordered exemplars. The motion was overruled.
Defendant, as his first issue on appeal, contends the district court’s denial of his motion to suppress was error. Defendant contends that inasmuch as he had not been charged when the order for exemplars was issued, the court ordering the exemplars was without jurisdiction to enter such an order. No constitutional questions are raised on this point.
In order to understand the circumstances as they existed when the order was entered, we must go into considerable detail. Prior to the order relating to the handwriting exemplars, the State had obtained search warrants for the job applications and a search of defendant’s home, car and person.
On or about May 9, 1978, the following affidavit was filed:
“I, Joseph L. McCarville, III, Assistant Reno County Attorney, 27th Judicial District, State of Kansas, being of lawful age and duly sworn upon my oath, depose and state:
“That on the 30th day of April, 1978 in Reno County, Kansas a burglary was reported at C & K Supply, Hutchinson, Kansas to the Hutchinson Police Depart ment. Det. John C. Koontz of the Hutchinson Police Department seized as evidence from that burglary some head hairs left on the safe, a walk-in safe that was opened by the burglar and from which removed the loot.
“Now on the 3rd day of May, 1978 at 12:15 P.M. Det. Sgt. Steven G. Bayless of the Reno County Sheriff’s Office obtained a Search Warrant from Judge Richard J. Rome for the premises of 928 East 2nd and the car owned by Jerry Mitchell based upon the affidavit which is attached hereto and is hereby incorporated by reference. I believe that the allegations contained in that affidavit are true and was present while Det. Sgt. Bayless swore to their truth. Further, that that affidavit shows probable cause that Jerry Mitchell was the person who committed the burglary at C & K Supply on the 30th day of April, 1978 in Reno County, Kansas.
“Therefore, I respectfully request the Court to issue a Search Warrant for the person of Jerry Mitchell to seize head hairs to be used compared to the head hairs obtained by Det. Koontz at the scene of the burglary at C & K Supply.”
Attached to the McCarville affidavit and made a part of it was the following unexecuted “affidavit” of Sergeant Bayless:
“I, Steven G. Bayless, Detective Sgt., Reno County Sheriff’s Department, being of lawful age and duly sworn upon my oath, depose and state:
“That on the 16th day of April, 1978, in Reno County, Kansas a burglary at Western Manufacturing Company address Wasp Lane at the old Naval Base was reported and I investigated. I discovered that entry had been gained by forcing a door, that tools belonging to Western Manufacturing had been used to punch a safe containing money and credit cards, that $55.00 in cash was taken, that a Sears and Roebuck microwave oven rotisserie valued at $275.00 was taken, that no finger prints were left on the scene by the perpetrators, that filing cabinets inside the premises were pried and half inch wide pry marks were left from unknown type instrument, the tools used to open the safe were left at the scene and a spit from the rotisserie that was taken was left behind.
“On the 30th day of April, 1978, in Reno County, Kansas a burglary was reported at C & K Supply in Hutchinson, Kansas to the Hutchinson Police Department. In that burglary no fingerprints were left, tools belonged to the business were used to open the safe which was punched, and the tools were left behind, money taken from the safe included $60.00 in change plus change from the coffee and pop machine fund totaling some $70.00 in change, a strip of plaid cloth was left behind on a sharp edge of the safe, and the point of entry was made by forcing the door into the warehouse.
“That I know an individual by the name of Jerry Mitchell who has been convicted for safe burglaries and has the following modus operandi: He usually punches safes once in a while will peel them, usually only takes money, he usually works alone although uses one partner, gains entry to the building wherever it requires the least physical effort such as vents, doors or windows, uses tools belonging to the business if they are available, and leaves them at the scene, and usually does not leave fingerprints by the use of gloves or some other means. Also Mitchell usually has personal knowledge of the location to be burglarized from either having worked there or been inside or having someone that knows the place.
“Jerry Mitchell worked for C & K Supply for three weeks in January of 1978 and he also worked for Western Manufacturing for three weeks in March of 1978. On the day after the burglary of Western Manufacturing in which $25.00 in change was taken approximately Jerry Mitchell cashed in $27.00 in change at Riverside Bowling Alley in South Hutchinson, Kansas. On the day after the C & K Supply burglary in which approximately $70.00 in change was taken Jerry Mitchell cashed in $76.00 in change at Riverside Bowling Alley in South Hutchinson. Jerry Mitchell was in the vicinity of the Western Manufacturing burglary on the everting of the burglary because he had his car break down down there and made a collect call to the Riverside Bowling Alley in South Hutchinson, Kansas to have someone go down and pick him up.”
On May 10, 1978, McCarville filed the following affidavit in support of his motion for the order requiring defendant to produce handwriting exemplars:
“I, Joseph L. McCarville, III, Assistant Reno County Attorney, 27th Judicial District, State of Kansas, being of lawful age and duly sworn upon my oath, depose and state:
“That on or about the 30th day of April, 1978, in Reno County, Kansas, C & K Supply reported to the Hutchinson Police Department that a burglary had occurred and approximately $1,600.00 in cash was taken from their walk-in vault. An investigation by Det. J. C. Koontz of the Hutchinson Police Department revealed that a small slip of paper was found in the debris of the point of entry into the safe. That on this paper were written several letters and numbers which Det. Koontz has compared with known samples of the handwriting of Jerry Mitchell, and based upon Det. Koontz’s observation of them he believes that Jerry Mitchell had written them. Det. Koontz contacted Charles Buchanan of the Kansas Bureau of Investigation, Headquarters in Topeka and determined that for a positive determination as to who wrote these letters and numbers two or more pages of handwriting exemplars would be required.
“That I was present on the 3rd day of May, 1978 when Det. Sgt. Steven G. Bayless of the Reno County Sheriff’s Department obtained a search warrant from Judge Richard J. Rome based upon an Affidavit a copy of which is attached and hereby incorporated by reference. I believe this affidavit to be true and correct and that it contains allegations sufficient to warrant conclusion that Jerry Mitchell is the person who committed the burglary at C & K Supply.
“Therefore respectively request the Court to issue an Order compelling Jerry Mitchell to provide Det. J. C. Koontz of the Hutchinson Police Department with no less than two pages of handwriting exemplars as directed by Det. Koontz.”
Note: The above affidavit mentions a May 3 search warrant. We do not know whether the Bayless affidavit referred to herein is the same as that attached to the May 9 affidavit of McCarville. This is mentioned only to inform that we are aware of the discrepancy of dates. Apparently, there were multiple search warrants issued prior to the handwriting order herein. For our purposes the exact dates of issuance are of no import except that they were prior to the handwriting exemplar order.
On May 10, 1978, Judge Rome issued the following order:
“NOW ON THIS 10th day of May, 1978, the Court having had submitted sworn testimony from which the Court has found that is reasonable to conclude that a crime has been committed and that evidence of the crime may be produced by compelling the giving of handwriting exemplars.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Jerry Mitchell of 928 East 2nd Street, Hutchinson, Kansas shall provide to Det. John C. Koontz of the Hutchinson Police Department no less than two pages of handwriting exemplars as directed by Det. Koontz.”
On May 18, 1978, the complaint against defendant was filed and a warrant was issued for defendant’s arrest.
Defendant concedes that the May 10, 1978, affidavit would have constituted sufficient probable cause for issuance of a search warrant, but contends the court had no jurisdiction to issue the pre-arrest order for handwriting exemplars. It is his further position that if the court had been without jurisdiction to issue the order, then the handwriting exemplars are, of necessity, not admissible into evidence for any purpose.
This is an issue of first impression before this court, and there are surprisingly few cases on point from other jurisdictions. Most federal cases in the field deal with the right of grand juries to require a witness to provide handwriting exemplars, and are determined on constitutional grounds. These are questionable authority for the issue before us. Illustrative of the rationale of this line of cases allowing such exemplars are:
United States v. Mara, 410 U.S. 19, 21-22, 35 L.Ed.2d 99, 93 S.Ct. 774 (1973):
“We have held today in Dionisio, that a grand jury subpoena is not a ‘seizure’ within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of ‘physical characteristics’ that are ‘constantly exposed to the public.’ Ante, at 9, 10, 14. Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. See United States v. Doe (Schwartz), 457 F.2d 895, 898-899; Bradford v. United States, 413 F.2d 467, 471-472; cf. Gilbert v. California, 388 U.S. 263, 266-267. Consequently the Government was under no obligation here, any more than in Dionisio, to make a preliminary showing of ‘reasonableness.’ ”
and United States v. Dionisio, 410 U.S. 1, 13-14, 35 L.Ed.2d 67, 93 S.Ct. 764 (1973):
“But the conclusion that Dionisio’s compulsory appearance before the grand jury was not an unreasonable ‘seizure’ is the answer to only the first part of the Fourth Amendment inquiry here. Dionisio argues that the grand jury’s subsequent directive to make the voice recording was itself an infringement of his rights under the Fourth Amendment. We cannot accept that argument.
“In Katz v. United States, supra, we said that the Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public, even in his own home or office . . . .’ 389 U.S., at 351. The physical characteristics of a person’s voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man’s facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.”
United States v. Holland, 552 F.2d 667 (5th Cir. 1977), is another grand jury handwriting exemplar case, but it approaches the issue from the jurisdictional rather than the constitutional standpoint. However, Holland is questionable authority, as the en banc court ordered that the mandate remain undisturbed, but that the opinion of the panel be withdrawn. 565 F.2d 383 (5th Cir. 1978). The withdrawn Holland opinion held the lower federal court was a court of limited jurisdiction; hence, it had no authority other than that specifically granted to it by Congress. The inference in Holland is that a court of general jurisdiction could have properly issued a pre-arrest order for handwriting exemplars. 552 F.2d at 671.
Grand jury proceedings are unique in nature and cannot truly be compared with proceedings upon complaint.
A case closer on point is Bradford v. United States, 413 F.2d 467 (5th Cir. 1969). There defendant’s handwriting had been compared with writings on money orders in connection with a charge of conspiracy to pass, utter and publish forged and altered postal money orders. The defendant contended the taking of the handwriting exemplars violated his Fourth Amendment right and they should have been suppressed. The Circuit Court found the evidence was in conflict as to whether the defendant had been under arrest at the time the handwriting exemplars were taken and held:
“We hold that the taking of the handwriting exemplars from Bradford is similar to blood sampling and fingerprinting and that if Bradford was under arrest at the time given they were admissible.
“If on the other hand he was not under arrest or the exemplars were not given voluntarily, it was error to admit them.” p. 472.
On remand, the district court found the defendant had been under lawful arrest and, on the subsequent appeal, the Circuit Court found the writings to have been voluntarily given. 429 F.2d 1275 (5th Cir. 1970). It is unclear whether the rationale of Bradford is still viable in light of Dionisio and Mara, which found no Fourth Amendment application.
The closest case factually to the one before us is Sanchez v. Attorney General, 93 N. M. 210, 598 P.2d 1170 (Ct. App. 1979.) Sanchez was under investigation regarding submission of false Medicaid claims. A district court ordered him to produce handwriting exemplars after Sanchez had refused a request by the attorney general to provide the same. Sanchez disobeyed the court order and was brought before the court on contempt charges. The New Mexico Court of Appeals held the district court had no jurisdiction to issue the order. This case is not squarely on point with our case. In Sanchez no exemplars had been produced by the court order. The appellate court’s ruling, in effect, was to invalidate the order requiring production of the exemplars. The court was not concerned with any other theory or admissibility of already obtained exemplars. The court stated:
“(c) Handwriting exemplars could be compelled if the requirements for a search warrant were met. Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The authority for a search warrant is stated in Rule of Crim. Proc. 17. Setting aside the question of probable cause, which we do not discuss, we consider the purposes for which a search warrant may be issued.
“Rule of Crim. Proc. 17 (a) states three purposes for which a search warrant may be issued. The investigator’s affidavit concluded that the exemplars were for the third purpose — to obtain evidence which ‘would be material evidence in a criminal prosecution.’ The affidavit, however, refutes its own conclusion. The affidavit seeks handwriting exemplars in order to compare the handwriting of Sanchez with handwriting on the false claims. This comparison is desired because the investigator does not know whether Sanchez is involved in the false claims. The affidavit contains nothing indicating Sanchez’ handwriting exemplars ‘would be’ evidence. The requirements for issuance of a search warrant were not met. The court’s authority to issue the order compelling handwriting exemplars may not be resolved on the basis that the order was, in effect, a search warrant.
“We have excluded search warrants as a decisional ground in order to emphasize that the issue is the court’s authority to compel the handwriting exemplars. The Attorney General does not claim that the court’s authority to issue search warrants was, in this case, authority to order the handwriting exemplars.” p. 1172.
In the case before us defendant concedes the affidavits filed herein constituted sufficient probable cause for issuance of a search warrant.
There is no provision in the Code of Criminal Procedure authorizing a pre-arrest court order directing a suspect to produce handwriting exemplars, but that is not dispositive of the issue of admissibility of the handwriting exemplars. We have examined the affidavits carefully and find they were sufficient for an arrest warrant to have been issued for defendant. Had defendant been arrested and then the handwriting exemplar order been entered, there would be no question of its propriety. See Bradford v. United States, 413 F.2d 467; State v. Haze, 218 Kan. 60, 542 P.2d 720 (1975). Prior to the issuance of the order the police knew positively that two crimes (burglary and felony theft) had been committed, and had probable cause to believe defendant had committed them. Instead of seeking defendant’s arrest at that point, the court order was sought. The county attorney apparently wanted to be positive defendant had committed the crimes before arresting him. We find no prejudice accruing to defendant by this irregular procedure, nor is any claimed. The police did not acquire anything by the order that they could not have acquired after arrest. Under the circumstances herein, no error is shown in the district court’s denial of defendant’s motion to suppress.
Defendant’s next issue on appeal is whether the district court erred in admitting the testimony of Mr. Caddick, the Satanta employer. Caddick testified that a man identifying himself as Jerry Mitchell from Hutchinson called him inquiring about the truck driving job. As noted in the factual statement given earlier, this was the job that was noted on the job form found at the crime scene. Other testimony was introduced showing defendant was a Hutchinson resident with experience as a truck driver and had used the Hutchinson Job Service Office on prior occasions. State v. Williamson, 210 Kan. 501, 504, 502 P.2d 777 (1972), sets forth the general rules relative to determining admissibility in such circumstances as follows:
“Communications by telephone are admissible in evidence where they are relevant to the fact or facts in issue, and admissibility is governed by the same rules of evidence concerning face-to-face conversations except the party against whom the conversations are sought to be used must ordinarily be identified. It is not necessary that the witness be able, at the time of the conversation, to identify the person with whom the conversation was had, provided subsequently identification is proved by direct or circumstantial evidence somewhere in the development of the case. The mere statement of his identity by the party calling is not in itself sufficient proof of such identity, in the absence of corroborating circumstances so as to render the conversation admissible. However, circumstances preceding or following the conversation may serve to sufficiently identify the caller. The completeness of the identification goes to the weight of the evidence rather than its admissibility, and the responsibility lies in the first instance with the district court to determine within its sound discretion whether the threshold of admissibility has been met. (State v. Kladis, 172 Kan. 38, 238 P.2d 522; State v. Visco, 183 Kan. 562, 567, 331 P.2d 318; Kansas Electric Supply Co. v. Dun and Bradstreet, Inc., 448 F.2d 647 [10th Cir.], cert. den., 405 U.S. 1026, 31 L.Ed.2d 486, 92 S.Ct. 1289; 29 Am. Jur. 2d, Evidence, §§ 380-386; 31A C.J.S., Evidence, § 188; Anno. 13 A.L.R.2d 1409.)”
Under the rules of law set forth in Williamson, the district court did not err in admitting the Caddick testimony.
As his third and final point, defendant challenges the sufficiency of the evidence to sustain his convictions. The test to be applied was recently stated in State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979), as follows:
“In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?”
The prosecution’s evidence implicating defendant includes: Defendant was a former employee of C-K Supply. The burglar appeared to have an inside knowledge of the place of business. Defendant lived two and one-half blocks from the crime scene. A slip of paper was found in the rubble at the crime scene, with a job title for a truck driver, which was traced to a job offered by Mr. Caddick. Caddick testified a man from Hutchinson with defendant’s name had inquired about the job. Defendant was registered at the employment agency as a truck driver. The job slip was written after defendant left the employ of C-K Supply. The K.B.I. document examiner testified he believed the person producing the handwriting exemplars (defendant) was the same person who had written the job slip. Of the over $1,600 taken in the crime, approximately $70.00 was in change. Approximately $70.00 in change had been cashed in at a bowling alley the day after the burglary by defendant and his girl friend. About two and one-half months after the break-in a workman repairing the crime damage found a Sears receipt with defendant’s name on it. The receipt was dated between the time defendant had left employment and the time of the burglary.
Defendant relied on an alibi defense.
We are convinced that a rational factfinder could readily have found defendant guilty beyond a reasonable doubt.
No error having been shown, the judgment is affirmed.
Fromme, J., not participating.
Holmes, J., dissenting.
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Per Curiam:
The question in this case comes up on a motion filed by plaintiff for judgment on the pleadings, and therefore the only question for this court to decide is, whether the petition and answer entitle the plaintiff to the relief sought. This depends upon the construction of chapter 98 of the Session Laws of 1889. The title of this act is:. “An act authorizing the county commissioners of Wabaunsee county to appropriate money,” etc. The act itself contains this language: “The county commissioners of Wabaunsee county are hereby authorized and empowered, and it is hereby made their duty, to appropriate such sum of money as may be necessary to keep in repair,” etc. The words, “ it is hereby made their duty,” if given full force, are broader than the title. To sustain the constitutionality of the act, these words must be regarded as nugatory, and the act must be construed as merely authorizing the county commissioners at their discretion to repair the bridge. Under this construction of the act, the county commissioners cannot be compelled by mandamus to make any repairs. (Town of Cantril v. Sainer, 59 Iowa, 26; City of Emporia v. Volmer, 12 Kas. 630; Stebbins v. Mayer, 38 id. 573.)
The peremptory writ will be denied.
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Opinion by
StraNG, C.:
Action on a promissory note. Martin Taylor and E. C. Minton were executors of the estate of Samuel Taylor, deceased. Minton did most of the business and handled the money, which he deposited in bis own name in a bank. Some time before the estate was settled, and the administration closed up, Taylor and Minton looked over Minton’s account as executor, and it was found that Min-ton had used for himself $120 of funds belonging to the estate. To make the amount good, he made his promissory note to Martin Taylor, his coexecutor, but made it to Taylor individually, instead of to him as executor. The other defendant, E. McFeeters, signed the note with Minton. When the note became due, Minton failed to pay it, and Taylor brought an action in his own name against Minton and Mc-Eeeters. The case was commenced before a justice of the peace, where the plaintiff filed the note as a bill of particulars. The defendants failed to appear and judgment was rendered against them by default. Defendants then appealed to the district court, where the case was tried by the court and jury without any further pleadings, resulting in a verdict for defendants. Motion for a new trial. Motion overruled. The question presented to this court is raised on the instructions of the court to the jury, which are as follows:
“1. You are instructed that the law implies that every promissory note that is made and delivered was given for a good and valuable consideration; and in this case the burden of proof is upon the defendants to establish, by a preponderance of the evidence, that the note in question was given without consideration, passing from plaintiff to defendant E. C. Minton; and unless defendants have done this, the jury should find for the plaintiff such, sum as you find is due and unpaid on said note. You are further instructed that the want of consideration destroys the validity of a note in the hands of the payee, and this without regard to the good faith of the transaction in which the note was given; and in this case, if the jury believe from the evidence that the note was given without any good or valuable consideration passing from the plaintiff individually to the defendants, or one of them, your verdict should be for the defendants.
“2. The plaintiff in this case is suing in his individual capacity, and not as a representative of the estate of Samuel Taylor, deceased. All evidence in relation to the consideration of account of defendant Minton with said estate is withdrawn from your consideration, and, in order to find for tbe plaintiff in this case, you must believe from the evidence there was a good and valuable consideration passing from the plaintiff individually to the defendants, or one of them, for which said note was given.”
The defendant Minton admitted that he was short in his accounts with the estate of Samuel Taylor, deceased, at the time he gave the note, in the sum of $120, and that he gave the note to Martin Taylor to make good his account with the estate, but denied that he ever owed Martin Taylor anything. The case seems to have been treated by the district court as one between Martin Taylor and the defendants, without any regard to the representative capacity of either Taylor or Min-ton. Viewing the case within these limits, there seems to be no serious error in the instructions of the court. But it is difficult to refrain from looking beyond these narrow limits, since the moment the evidence appears it becomes apparent that Martin Taylor took and holds the note for the use of his father’s estate. All the evidence on both sides proves this. Looking at the case in the light of the real position of the ' parties, Taylor and Minton, and treating them as coexecutors, as under the evidence they were, both at the time the note was given and at the time of the trial, and the action cannot be maintained. Being coexecutors, the possession of the funds of the estate by either, is the possession of the other; the possession being in law a joint one. Funds in the hands of Minton belonging to the estate of which he and Taylor were coexecutors, if transferred by him to Taylor, are still in the joint possession of both. The giving of the note by Minton to Taylor did not cancel Minton’s engagement to the estate. He was still liable to the estate for the money of the estate that had reached his hands. He might have been required by the probate court to turn the money over for distribution without regard to the note. Nor did the receipt of the note from Minton charge Taylor with the money the note was intended to represent, so long as the money actually remained in Minton’s custody. Notwithstanding the note, until the estate was settled up, or the probate court required him to turn over the money for distribution, Minton had a right to the custody thereof. If the note could be treated as a part of the assets of the estate, Minton had the same right to the custody of it that Taylor had, and the possession of the note by Taylor was, in law, equally the possession of Minton.
The statute provides a simple and direct method whereby funds in the hands of an executor may be released from his custody for the benefit of the creditors, or distributees of the estate.
It is therefore 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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Opinion by
Simpson, C.:
This is a petition in error filed by the board of county commissioners and others, plaintiffs in error, to reverse one of the findings and a part of the judgment of the district court made in the case. The action was commenced by the defendant in error, Barker, under § 253 of the code, to enjoin the collection of certain taxes and special assessments levied upon his land under the pretended authority of chapter 214, Laws of 1887, being “An act providing for the improvement of county roads.” We have considered some of the findings and rulings in the preceding case, Barker v. Comm’rs of Wyandotte Co., ante, p. 681, that the plaintiff below brought here for review. At the trial below, the court found as follows .as to the improvement of the Quindaro boulevard:
“ 2. The petition for the improvement of the Quindaro boulevard was, on the 3d day of June, 1887, presented to the board of county commissioners of said county, and upon presentation of such petition, the commissioners ordered a survey, map, and profile and specifications to be made and filed by the county surveyor, which were all made and attached together, properly authenticated by the signature of the county surveyor; and the map and profile offered in evidence are the ones and only ones made by the county surveyor, and by him filed with the board of county commissioners, relating to said Quindaro boulevard improvement.
“3. Afterward the county commissioners appointed S. S. Sharpe, G. W. Bishop and R. M. Gray commissioners to take charge of said improvement. On January 8, 1888, said Sharpe resigned, he having been in the meantime elected county commissioner, and W. E. Connelley was appointed by the commissioners in his place, and afterward Bishop and said Connelley resigned, and the county commissioners appointed T. L. Higgins and James Squires in their places.
“4. Said commissioners were all properly qualified, except G. W. Bishop, who resigned before any considerable portion of the work of said improvement was begun.
“5. The plaintiff lived upon his land just south of the Quindaro boulevard, and his land abuts thereon. He was residing at his said home all the time the improvements were being made upon all the streets mentioned, and was thoroughly familiar with the manner in which the construction of said improvement was carried on, and knew that his land was within the half-mile limit, and would be assessed to pay for such improvement under said law of 1887.
“6. There were within the half-mile limit between the termini mentioned in the petition, along said Quindaro boulevard, twenty-one resident land-holders at the time of the presentation of the petition for the improvement of the said road. Only five of said resident land-holders signed the petition which was presented to the board of county commissioners, and upon which said board acted in ordering said improvement to be made and constructing the same.
“7. The petition for the improvement of Quindaro boulevard was presented to plaintiff for signature, but he did not sign the same; and it nowhere appears in evidence that he knew who did sign it, or that it was not signed by a majority of the resident land-holders within the territory taxed, until after said improvement was completed.
“8. The map filed by the county surveyor included a triangular strip of ground on the south side of the road improved, at its junction with Fifth street, which was not within the half-mile limit, and excluded a similar tract on the north side of said Quindaro road at the same junction, which was within the half-mile limit.
“9. The map also excluded a small tract of land which was within the half-mile limit and lying south of the road, in a triangular form, and at that time within the city limits of Kansas City, as appears from the map; and also excluded a piece of land of about forty acres, used as a cemetery, and marked ‘ Woodlawn/ lying within said limits; and the commissioners on each of the improvements mentioned excluded said last-mentioned tract in making up their apportionments.
“10. It does not appear that the plaintiff knew what lands were included or excluded from said map.
“11. The profile filed by the county surveyor showed the grade line of the road, and the commissioners in making the improvement made some slight deviations from such grade line, but such deviations did not in any manner injure the road, and to some extent reduced the cost of the improvement. Whatever change was made was at the request of the plaintiff, Barker.
“12. The contract for the work was made by the commissioners for a foundation of one-inch cypress plank, and the work was constructed with one-inch cypress plank foundation.
“13. Plaintiff knew what the petition called for, and also the kind of plank that was being used during all the work from the beginning.
“14. The precise day upon which the road commissioners made their apportionment does not appear from the evidence, but upon June 14,1888, they caused to be published a notice, of which the following is a copy:
“‘The board appointed to assess the benefits to property for grading and blocking of Quindaro boulevard have made their apportionment, and will meet the property-owners interested at the office of the county clerk, on Monday, Tuesday, and Wednesday, June 18th, 19th, and 20th, at 9 a.m. [Signed] R. M. Gkay, Chairman.
T. L. Higgins, Secretary
“ Which notice was published for one week in the official county paper, and is the only notice shown by the evidence to have been given by the said commissioners either before or after making their apportionment. Upon June 18, 1888, the said commissioners met, and their minutes show the following entry:
‘“June 18, 1888. — The board having finished the apportionment of benefits, and having advertised the same in the official county paper, met, as per said notice, as a board of equalization, and to hear complaints, if any are to be made, from property-owners, and after remaining in session all day, adjourned until to-morrow, June 19th.
[Signed] T. L. Higgins, Secretary.
R. M. Ghay, Chairman.’
“Said board was in session for the purposes mentioned in the foregoing^ entry each day thereafter until June 23d following, when it adjourned finally as a board, and the same day filed its report with the county clerk, together with all books and papers possessed by it relative to said improvement. Each day’s entry in the minutes of its proceedings was signed by the chairman and secretary, and the last by all the board, as was also a paper delivered to - the county clerk, which purported to be the final action of the board.
“15. The improvement upon Quindaro boulevard was well constructed and of good material, and was of great value to the property-owners within the half-mile limit, and enhanced the value of all such lands to an amount greater than the tax assessed against it for such improvement.”
“36. By reason of the improvement of the boulevard, Tenth, Fifth, and Third streets, all that belt of country lying immediately south of the boulevard and between Ninth and Third streets, in which tract the land of plaintiff lies, has been made easy of access upon paved streets, has been greatly enhanced in value, and since said improvements were made has been more rapidly developed than any portion of Kansas City, owing largely to such improvements.”
According to the sixth special finding, only five of the twenty-one resident land-holders that were within the half-mile limit between the termini mentioned for improvement signed the petition. It was this finding, in all probability, that induced the trial court to conclude that the petition for the improvement of Quindaro boulevard was void, and conferred no jurisdiction upon the board of county commissioners to make the improvement; that no sufficient facts have been shown to create an estoppel as to the plaintiff, and that the temporary injunction should be made perpetual as to tax for the improvement of Quindaro boulevard.
The findings and conclusions as to this boulevard are claimed to be erroneous, and it is said in support of this contention that the statute confers upon the resident land-holders only the right to petition, and when the petition is presented, the board of county commissioners exercises the same powers as it is authorized to exercise under the provisions of the general road laws. It is further said, that the insufficiency of the petition cannot be urged in this action, as it is a collateral attack.
The first section of the act requires in positive terms —
“That whenever a majority of the resident land-holders within one-half mile on either side along the line of any regularly laid out road, within the terminal points mentioned in the petition, shall petition the board of county commissioners of any county in this state for the improvement of' any road as located, or any part thereof, it is hereby made the duty of such county commissioners to cause the same to be improved as hereinafter provided.”
It would seem, on principle, that the requirement of this statute that a majority of the resident land-holders within the the limit must sign the petition for improvement, is not only imperative and must be always com- * A •*/ pliec* with, but the power of the board to order the improvement cannot be exercised unless the petition contains the names of that majority. The best reason for this is, because the statute says so, and if you once depart from fhe plain letter of the act, and say that five land-holders out of twenty-one can compel action by the board, then any number less than a majority may do so.
The position assumed by counsel for these plaintiffs in error with reference to this question is this: That under the first section of the act the board of county commissioners has the power to determine whether or not the petition was signed by a majority of the resident land-holders within the half-mile limit; that in this particular instance it exercised that power, and determined that the petition was signed by such majority, and that this finding cannot be attacked collaterally in this proceeding. Numerous cases decided by the supreme court of the state of Indiana are cited that fairly support this contention. The case of Quinlan v. Myers, 29 Ohio St. 500, is a formidable authority in their favor. They also cite the case of Sleeper v. Bullen, 6 Kas. 300, and call attention to the following language of the court:
“Is the city liable? We think it is. The petition appears to be good upon its face. The city council, the agents of the city, and in whom is confided the province of deciding the question, decided and declared that the petition was good and valid, and now, after the contract has been executed on the part of the contractors, after the grading has' all been done, the city is estopped from denying the validity of the contract or its liability to the contractors for the grading.”
When this case is carefully examined, it will be seen that this language was used by the court with reference to a controversy between the city and the contractors, and has no application to the question of the validity of the petition as between a lot-owner, whose lot was assessed, and the city. The case was commenced by Sleeper, and many others, against the city of Leavenworth and the city treasurer, to restrain the collection of a special, tax assessed to pay for making certain local improvements on Fifth avenue, in the city of Leavenworth, alleging that there had not been any legal or proper petition presented to the city council praying for the improvements to be made, and that for the want of such petition, the taxes levied to pay for the same were illegal and void. Subsequent to the filing of the plaintiff’s petition, Bullen and Dustin, the contractors who made the improvements, were made parties on their own motion, and in their answer they claimed that their contract was made with the city in good faith, and in ignorance of the facts respecting the petition; that they had performed and completed the contract; that their work had been accepted by the city, and demanded judgment against the city for the amount due them for making the improvements. The trial court found —
“That a petition for grading Fifth avenue between certain points had been signed by the requisite number of property-owners affected thereby, and while said petition was in the custody of the city council, and without the consent of a majority of the property-owners residing upon and owning the property to be taxed to pay for such improvement, it was changed by one of the signers, by striking out the words ‘the north line of Tanner’s farm,’ and inserting the words ‘ Fanny street, or where the grade will run out through the hill at Sigel Garden.’ ”
Other facts were found, and the court held that the ordinance for grading Fifth avenue and the assessments made thereunder were void, and created no lien against the abutting property. This court, in reviewing the case, says:
“The first question in the case is whether the contract with Bullen and Dustin, and the special tax levied to pay them for said grading, were legal? We think that they were not legal, for the reason that no sufficient petition was ever presented to the city council. It therefore follows that said city had no legal right to sell said lots for said special taxes.”
The court then considers a third question in the case, as to whether the city is liable to the contractors for the grading, and uses the language quoted in the brief and relied upon by counsel for plaintiffs in errQr. There is no question in this case between the contractors and the county: the question here is between a land-holder and the board of county commissioners and treasurer. The first point in the syllabus of the Sleeper case is:
“A contract made by the city council, under chapter 70, . Laws of 1876, for grading a street in Leavenworth city, without a sufficient petition having first been presented to the council, is, and all proceedings under such contract are, void as against lot-owners.”
The case as we take it is authority for two propositions: First, that the board of county commissioners acquired no jurisdiction to cause the Quindaro boulevard to be improved, on account of the insufficiency of the petition. Second, the petition is subject to a collateral attack in eases like this.
In the case of Noffzigger v. McAllister, 12 Kas. 315, this court says that the county commissioners of Bourbon county had no authority to make an order putting the night herd law in force in a township, without a petition from a majority of the qualified electors of the township asking for the same; that the petition is a jurisdictional fact, and without it no valid order can be made. The order of the board recited that a petition had been presented by a majority of the qualified electors of the township. In this case there was a collateral attack.
The cases of Comm’rs of Wabaunsee Co. v. Muhlenbacher, 18 Kas. 129, and Shaffer v. Weech, 34 id. 595, are both to the effect that the requirement that the requisite number of resident land-holders must sign the petition is a jurisdictional one; that it is a precedent condition, and a failure to comply with it will make all subsequent proceedings void.
The general rule applicable to such inferior jurisdictions as boards of county commissioners is, that in their proceedings they are to be held to the strict limits of their authority as conferred and prescribed by statute. We are confident that the rule held and applied by this court is, that the land-holder can show in a collateral action the want of jurisdiction of the county board to order the improvement, unless he has so placed himself by acts or words as to be equitably estopped from so doing. The trial court finds as a conclusion of law that no sufficient facts have been shown to create an estoppel as to Barker in the matter of the Quindaro boulevard. The special findings of fact upon which this conclusion is based are the fifth, seventh, and thirty-sixth. The fifth shows that Barker was familiar with the manner in which the construction of said improvements was made, and knew that his land was within the half-mile limit, and would be assessed to pay for such improvement, under the law of 1887. The thirty-sixth shows that, by reason of the improvement of the boulevard and other streets, the land of the plaintiff was made easy of access upon paved streets, and has greatly enhanced its value. The seventh finds that the petition for the improvement of the boulevard was presented to Barker for signature, but he did not sign it, and that it is not shown that he knew who did sign it, or that it was not signed by a majority of the resident land-holders within the territory taxed, until after the said improvement was completed. In our judgment this finding is conclusive against the con-tentjon Qf counsei for the plaintiffs in error, that Barker is estopped from asserting the jurisdictional defect in the petition for the improvement of the boulevard. Giving to the plaintiffs in error the benefit of the most favorable reported cases, yet it is almost universally held that, in order to estop a tax-payer from objecting to a jurisdictional defect, he must have known of such defect at the time it occurred, or discovered it before the work was commenced. (Am. & Eng. Encyc. of Law, 20, and citations in foot-notes.) Indeed, the rule is stated very much stronger than this in the case of City of Leavenworth v. Laing, 6 Kas. 274. The other findings do not recite sufficient facts to create an estoppel.
We recommend that the findings and judgment of the trial court as to the boulevard be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
This is an action brought under § 253 of the code by the plaintiff, Thomas J. Barker, against the county commissioners, clerk and treasurer of Wyandotte county, to enjoin the collection of certain taxes and special assessments levied upon plaintiff’s land by pretended authority of chapter 214 of the Laws of 1887, being an act entitled “An act providing for the improvement of county roads.” The facts, as disclosed by the pleadings, evidence, and findings, are substantially as follows: The plaintiff, Thomas J. Barker, is the owner of a tract of land situated in the suburbs of Kansas City, but beyond the limits thereof. This land abuts upon Quindaro boulevard, a street that runs along its northern boundary. Lying west of plaintiff’s land, in the order mentioned below, and running parallel with its western boundary, are Seventh, Eighth, Ninth and Tenth streets. Lying east of plaintiff’s land, in the order mentioned below, and running parallel with its eastern boundary, are Sixth, Hallocb, Fifth, Thompson, Fourth, Walnut and Third streets. The plaintiff’s land is within one-half mile of all of these streets, and the county commissioners, by pretended authority of chapter 214 of the Laws of 1887, undertook to improve Quindaro boulevard, Third street, Fifth street, and Tenth street, by grading and paving them with cedar blocks, and to impose one-third of the cost of such improvement upon the tax-payers of the county by general taxation, and to charge the other two-thirds as a special assessment upon plaintiff’s land, as provided in said road-improvement law. This action was brought to enjoin the collection of said general tax, and also the collection of said special assessment, on the ground of various irregularities in the proceedings, and because the said chapter 214 of the Laws of 1887 is unconstitutional. Upon the trial, the district court granted the injunction in the matter of the Quin-daro boulevard, but denied it as to Third, Fifth and Tenth streets. This petition in error is brought by the plaintiff to reverse the judgment of the district court denying the injunction in the matter of Third, Fifth and Tenth streets, and the defendants have also filed a petition in error to reverse the judgment granting the injunction in the matter of the Quin-daro boulevard.
It is claimed that chapter 214 of. the Laws of 1887 is unconstitutional : First, because it attempts to delegate legislative power to the petitioners, and confer upon them the absolute and arbitrary power to levy taxes and special assessments on the property of others; second, the road-improvement law is unconstitutional because it does not provide “a uniform and equal rate of assessment and taxation; ” third, the act in question is in violation of §15 of the bill of rights; fourth, it is not within the constitutional right of the legislature to confer upon counties and other quasi corporations the power to levy special assessments for local improvements, much less to confer that power upon a class of “resident land-holders;” fifth, the act is in violation of the fourteenth amendment to the federal constitution.
In addition to the constitutional objection, it is urged that the proceedings are void for the following judicial defects and irregularities: As to Quindaro boulevard: First, the petition is not signed by a majority of the resident land-holders as required by § 1 of the act; second, the county surveyor, in making the map of the taxing district, as required by § 3 of the act, omitted several tracts of land within the half-mile limit; third, the county surveyor, in making the profile and specifications for the improvement, as required by § 3 of the act, wholly disregarded the petition, and specified a different improvement from that prayed for; fourth, one of the road commissioners did not take the oath required by §5 of the act; fifth, no notice was given of the time and place of making the apportionment.
As to Tenth street: First, at the time the petition was presented, Tenth street did not in fact exist; second, the apportionment was made and delivered to the county clerk before the day those interested had been notified to appear and make their complaints; third, the apportionment was not signed or authenticated by the commissioners, and the record of their proceedings was not kept and filed with the county clerk, as required by §7 of the act; fourth, the omission of a cemetery in making the apportionment.
As to Third street: The same irregularities occur as in the Tenth street proceedings.
As to Fifth street: The same infirmities exist in the proceedings as to this street as in Third and Tenth streets, except that Fifth street was a “regularly laid out county road” to a width of forty feet, the same being improved, however, to a greater width. The petition for the improvement of this street fails to state “the time for which assessments in payment thereof are to be made,” as required by §2 of the act. In addition to curbing, grading, and paving on a concrete base, the improvements of Fifth street also included the construction of sidewalks fourteen feet wide on both sides of the street. The plaintiff’s land had already been charged with three of these road-tax assessments, for Quindaro, Third and Tenth streets, and was, therefore, expressly exempted by § 8 of the act from further burdens.
At the September term, 1889, the case was tried by the court, and the following findings of fact and conclusions of law were made:
“FINDINGS OF FACT.
“1. This action was begun November 10, 1888, to restrain the collection of taxes for special improvements in grading and paving Quindaro boulevard, a county road, Ninth, Fifth, and Third streets, in Wyandotte county, made under the act providing for the improvement of county roads (chapter 214 of the Laws of 1887), and which were made in 1888, and fully completed, as follows: Quindaro boulevard, June 14, 1888; Ninth, Fifth and Third streets, about October 18,1888. The assessments had been made and apportioned, and the amounts entered upon the tax-rolls of the county, and the county treasurer was proceeding to collect said taxes in the same manner as other taxes, when this action was instituted.
“2. The petition for the improvement of Quindaro boulevard was, on the 3d day of June, 1887, presented to the board of county commissioners of said county, and upon presentation of such petition, the commissioners ordered a survey, map, and profile and specifications to be made and filed by the county surveyor, which were all made and attached together, properly authenticated by the signature of the county surveyor; and the map and profile offered in evidence are the ones and only ones made by the county surveyor, and by him filed with the board of county commissioners, relating to said Quindaro boulevard improvement.
“3. Afterward the county commissioners appointed S. S. Sharpe, G. W. Bishop and R. M. Gray commissioners to take charge of said improvement. On January 8, 1888, said Sharpe resigned, he having been in the meantime elected county commissioner, and W. E. Connelley was appointed by the commissioners in his place, and afterward Bishop and said Connelley resigned, and the county commissioners appointed T. L. Higgins and James Squires in their places.
“4. Said commissioners were all properly qualified, except G. W. Bishop, who resigned before any considerable portion of the work of said improvement was begun.
“5. The plaintiff lived upon his land just south of the Quindaro boulevard, and his land abuts thereon. He was residing at his said home all the time the improvements were being made upon all the streets mentioned, and was thoroughly familiar with the manner in which the construction of said improvement 'was carried on, and knew that his land was within the half-mile limit, and would be assessed to pay for such improvement under said law of 1887.
“6. There were within the half-mile limit between the termini mentioned in the petition, along said Quindaro boulevard, twenty-one resident land-holders at the time of the presentation of the petition for the improvement of the said road. Only five of said resident land-holders signed the petition which was presented to the board of county commissioners, and upon which said board acted in ordering said improvement to be made and construdting the same.
“7. The petition for the improvement of Quindaro boulevard was presented to plaintiff for signature, but he did not sign the same; and it nowhere appears in evidence that he knew who did sign it, or that it was not signed by a majority of the resident land-holders within that territory taxed, until after said improvement was completed.
“8. The map filed by the county surveyor included a triangular strip of ground on the south side of the road improved, at its junction with Fifth street, which was not within the half-mile limit, and excluded a similar tract on the north side of said Quindaro road at the same junction, which was within the half-mile limit.
“9. The map also excluded a small tract of land which was within the half-mile limit and lying south of the road, in a triangular form, and at that time within the city limits of Kansas City, as appears from the map; and also excluded a piece of land of about forty acres, used as a cemetery, and marked ‘ Woodlawn/ lying within said limits; and the commissioners on each of the improvements mentioned excluded said last-mentioned tract in making up their apportionments.
“10. It does not appear that the plaintiff knew what lands were included or excluded from said map.
“11. The profile filed by the county surveyor showed the grade line of the road, and the commissioners in making the improvement made some slight deviations from such grade line, but such deviations did not in any manner injure the road, and to some extent reduced the cost of the improvement. Whatever change was made was at the request of the plaintiff, Barker.
“ 12. The contract for the work was made by the commissioners for a foundation of one-inch cypress plank, and the work was constructed with one-inch cypress plank foundation.
“ 13. Plaintiff knew what the petition called for, and also the kind of plank that was being used during all the work from the beginning.
“14. The precise day upon which the road commissioners made their apportionment does not appear from the evidence, but upon June 14,1888, they caused to be published a notice, of which the following is a copy:
“‘The board appointed to assess the benefits to property for grading and blocking of Quindaro boulevard have made their apportionment, and will meet the property-owners interested at the office of the county clerk, on Monday, Tuesday, and Wednesday, June 18th, 19th, and 20th, at 9 a.m. [Signed] R. M. Gkay, Chairman.
T. L. Higgins, Secretary.'1
“ Which notice was published for one week in the official county paper, and is the only notice shown by the evidence to have been given by the said commissioners either before or after making their apportionment. Upon June 18, 1888, the said commissioners met, and their minutes show the following entry:
“ ‘June 18, 1888. — The board having finished the apportionment of benefits, and having advertised the same in the official county paper, met, as per said notice, as a board of equalization, and to hear complaints, if any are to be made, from property-owners, and after remaining in session all day, adjourned until to-morrow, June 19th.
[Signed ] T. L. Higgins, Secretary,
R. M. Gkay, Chairman.'
“Said board were in session for the purposes mentioned in the foregoing entry each day thereafter until June 23d following, when they adjourned finally as a board, and the same day filed their report with the county clerk, together with all books and papers possessed by them relative to said improvement. Each day’s entry in the minutes of their proceedings was signed by the chairman and secretary, and the last by all the board, as was also a paper delivered to the county clerk, which purported to be the final action of the board.
“15. The improvement upon Quindaro boulevard was well constructed and of good material, and was of great value to the property-owners within the half-mile limit, and enhanced the value of all such lands to an amount greater than the tax assessed against it for such improvement.
“16. The petitions for the improvement of Ninth and Third streets were in due form, and all the preliminary steps of surveys, maps and specifications were regularly ordered and filed, and Henry Horstman, Henry Swiugley and John Adams were duly appointed and sworn as commissioners to take charge of said improvements.
“17. The work was begun about-, 1888, and completed about October 18, 1888.
“18. The work upon the improvements was all well done and materials used first class.
“19. The commissioners kept full minutes of all their proceedings, but by accident the book in which such proceedings were kept was mutilated, and only a few pages- thereof preserved and produced in court. The book of apportionments and papers offered in evidence are those kept and made by the commissioners.
“ 20. The only notices given to the public or property-owners along the line of said improvements, shown by the evidence to have been given by the commissioners either before or after their apportionments, of the cost of such improvements, were dated October 18, 1888, and were in words and figures as follows:
Thied-Stbeet Notice. — The road commissioners on North Third-street county road, having made apportionment of the cost of improving said road, will meet at the office of the county clerk of Wyandotte county, Kansas, in Kansas City, in said county, on Monday, Oct. 29, 1888, and continue in session- until Wednesday, Oct. 81, to hear any complaints from property-owners who may be taxed for the payment of said improvements. • Heney Hobstman,
H. S. Swingdey,
John Adams,
Commissioners.’
“‘Ninth Steeet Notice. — The road commissioners on Ninth-street county road, having made apportionment of the cost of improving said road, will meet at the office of the county clerk of Wyandotte county, Kansas, in Kansas City, in said county, on Monday, Oct. 29, 1888, and continue in session until Wednesday, Oct. 81, to hear any complaints from property-owners who may be taxed for the payment of such improvements. Heney Hobstman,
H. S. Swingdey,
John Adams,
Commissioners’
“Said notices were published for two weeks only, on Oct. 18 and 25, 1888.
“21. The report and apportionment made by the commissioners were duly filed, and on October 31,1888, the plaintiff filed with the county clerk a paper which was called an appeal from said report and protest against any tax against his property for said improvements, but no appeal was ever perfected by him, and be never made any further appearance before the county board in reference to the matter. The commissioners docketed the protest as an appeal, but no further order was ever asked or made in relation thereto.
“22. On November 1, 1888, the tax-roll with the cost of said improvements so apportioned, including the assessment on plaintiff’s land, was by the county clerk delivered to the county treasurer for collection.
“ 23. And at the time of the presentation of the petition for the improvement of said Third and Ninth streets, those portions of them petitioned to be improved were not and never had been county roads.
“24. One portion of Ninth and all of Third street bad been laid out as streets through certain lands platted by the owners, but had not been used or traveled as roads, while another portion of Ninth street had never been opened in any way, or dedicated as a street or laid out or traveled, at the time the petition was filed; but in June, 1888, the owner of the land executed a deed therefor to the county.
“25. No petition of householders for opening said road was filed, no viewers were appointed, or reports of utility filed, and no proceedings for laying out said Ninth and Third streets as county roads were had prior to the filing of the petitions for their improvement, but the commissioners, two or three months after the filing of the petitions, by resolution of the board, declared the said streets to be county roads.
“26. On April 11, 1888, and before the said improvements were completed, the boundaries of Kansas City, Kansas, were so extended as to bring all that part of Ninth and Third streets described in the petition for improvement within the city limits, and the name of said Ninth street was changed to ‘Tenth street.’
“27. The plaintiff lives and his land lies just south of the Quindaro boulevard, and between the improvement on Ninth street and that on Fifth street; and other streets intervene between plaintiff’s land and Third and Ninth streets.
“28. His (plaintiff’s) land does not anywhere abut upon said Ninth or Third streets, but the improvements were and are of great value to the property of the plaintiff, and he has received benefits therefrom equal to and greater than the cost of such improvements taxed to him, and different from those to the general public.
“29. The plaintiff, living in the immediate vicinity, at all times knew that said Ninth and Third streets never had been county roads up to the time of the petitions for their improvement; and he also at all times knew that the improvements were being made under the said law of 1887, and that his land was within the half-mile limit, and would be assessed with its proportion to the cost of such improvements.
“30. Fifth street, where improved, was regularly laid out as a county road, and had been traveled as such for many years prior to the filing of the petition for its improvement.
“ 31. The same commissioners were appointed and qualified upon the improvement of Fifth street as upon Third 'and Ninth streets, and the work done was fully up to contract and a valuable and desirable improvement, and was completed about October 18, 1888.
“ 32. The report of the commissioners as to the Fifth-street improvement was filed upon the same day as those upon Third and Ninth streets. The tax-roll was delivered to the treas-' urer at the same time, and said street was brought within the new boundaries of Kansas City on April 11, 1888, and before the work was fully completed.
“33. The commissioners gave only one notice, so far as the evidence shows, either before or after making their apportionment, and that was in words and figures as follows :
“1 Fieth-Steeet Notice. — The road commissioners on Fifth street county road, having made apportionment of the cost of improving said road, will meet at the office of the county clerk of Wyandotte county, Kansas, in Kansas City, in said county, on Monday, Oct. 29, 1888, and continue in session until Wednesday, Oct. 81, to hear any complaints from property-owners who may be taxed for the payment of said improvement. [Signed] Henby Hobstman,
H. S. Swinguey,
‘“Oct. 18, 1888.’ John Adams,
Commissioners’
“This notice was published for two weeks only, on October 18 and 25, 1888.
“34. On October 31, the plaintiff filed a paper named therein an appeal from the report of the commissioners as to Fifth street, but no appeal was perfected by him, and he at no time asked any order from the county commissioners to be made in relation to the assessment against his land, and no order ever has been made therein; and while the county board docketed such protest as an appeal, it was never by either party thereafter treated as 'such.
“35. None of the lands of the plaintiff abut upon Fifth street, and a street intervenes between the land of plaintiff and said street, but the land of plaintiff has been increased in value by said Fifth street improvement, and has derived benefits therefrom different from the general public and to an amount greater than the cost of the improvement taxed to him.
“36. By reason of the improvement of the boulevard, 'Tenth, Fifth and Third streets, all that belt of country lying immediately south of the boulevard and between Ninth and Third streets, in which tract the land of plaintiff lies, has been made easy of access upon paved streets, has been greatly enhanced in value, and since said improvements were made has been more rapidly developed than any portion of Kansas City, owing largely to such improvements.
“37. The petition filed for the improvement of Fifth street was properly signed, and was regular in form, except that it did not state the time for which assessments in payment of the improvement were to be made. The plaintiff saw and knew the contents of said petition before the improvement thereunder was begun.
“38. The plaintiff was at all times fully aware of the work of improvement upon said street being done, during the time it was progressing, and the manner of doing the same, and that his land was within the half-mile limit, and would be assessed to pay for such improvement.”
“CONCLUSIONS OK LAW.
“1. The petition for improvement of-Quindaro boulevard was void, and conferred no jurisdiction upon the board of county commissioners to make the improvement.
“2. No sufficient facts have been shown to create an estop-pel as to plaintiff.
“3. The temporary injunction should be made perpetual as to the tax for the improvement upon Quindaro boulevard.
“4. Third and Tenth streets were not county roads when the petition was filed, and never have been, and the commissioners bad no jurisdiction to order the improvement; but the plaintiff by reason of the facts shown in evidence, is estopped to set up the illegality of the tax, and the temporary injunction is, as to the tax for both of those improvements, dissolved.
“ 5. The Fifth street petition was irregular, but not void, and conferred jurisdiction upon the board of commissioners to order the work.
“6. The plaintiff, having knowledge of the defect in the petition and other facts shown in the evidence, is estopped from setting up such irregularity at this time, and the tempo- vary injunction is dissolved as to the assessment for the Fifth street improvement.”
We deem it necessary in the disposition of these cases to consider but few of the many questions raised and discussed by counsel for the plaintiff in error. Three cases have been considered together — those of Comm’rs of Wyandotte Co. v. Barker, and Stewart v. Comm’rs of Wyandotte Co., post, embracing most, if not all, of the questions involved in this case. The record is in an unsatisfactory state. While it recites that it contains all the evidence, the various maps made by the county surveyor of the respective taxing districts are not contained in the record, although it recites that they were offered and received in evidence. This omission precludes us from having any intelligent knowledge of the various localities referred to in the record and briefs of counsel.
The various questions discussed and determined in these cases all arise about the true intent and construction of the provisions of an act of the legislature of 1887, entitled “An act providing for the improvement of county roads.” In the first section of the act provision is made for the commencement of proceedings to improve “ any regularly laid out road.” The expression in the title, and the words quoted in the first section, make it clear that the true intent and meaning of the act was to provide for the improvement of that class of roads that are established under the provisions of the general law of the state concerning highways as county roads. The roads, then, sought to be improved under this act must be regularly laid out county roads. There is no possible construction that can be given to this act to make it include within its provisions stre'ets, or any portion thereof, in a city of the first class, or any other class of roads than the class specifically mentioned in the act. We have general laws providing for the organization and control of cities of the first class, whereby the most ample power is conferred upon the corporate authorities to make the most elaborate improvements of its streets. The improvement authorized by the act under consideration is that of a regularly laid out county road entirely outside of the limits of any city of the first class. If any portion of the road intended to be improved lies within a city of the first class, this act has no application whatever to this portion. These remarks are deemed necessary, because, in the absence of the county surveyor’s maps, it seems that probably, when some of these proceedings were instituted, or certainly soon thereafter, some portions of the roads were in fact streets in the city, so called in the record, and so designated in the findings of the trial court. In this case, as in the case of Comm’rs of Shawnee Co. v. The State ex rel., 42 Kas. 327, there is a very vigorous assault on the constitutionality of the act, but as there are other controlling questions that in our judgment are decisive of this controversy, it is not necessary to consider the question of its constitutional validity. That part of the judgment sought to be reversed by this proceeding in error is the findings of fact and conclusions of law with reference to the improvement of Tenth, Third and Fifth streets.
I. As to Tenth street: This street was originally called “Ninth” street, but was changed to “Tenth” by the city council of Kansas City, the boundaries of the city having been extended so as to include it before the improvements were completed. According to the twenty-third and the twenty-fourth special findings of the trial court, that portion of Ninth street petitioned to be improved was not and never had been a county road. A part of Ninth street had been laid out as a street through certain lands platted by the owners, but had not been used or traveled as a road ; while another part had never been opened in any way, or dedicated as a street, or laid out or traveled at the time the petition was filed; but in June, 1888, more than nine months after the petition was presented and the improvement ordered, the owners of the land through which the street was located executed a deed of the street to the county. No petition of householders for opening said road was filed; no viewers were appointed, or reports of utility filed; and no proceedings for laying out said Ninth street as a county road were had prior to the time of the filing of the petition for its improvement; but the county commissioners, two or three months after the filing of the petitions, by resolution of the board, declared said street to be a county road.
We have already said that this law only authorizes the improvement of county roads regularly laid out. The road sought to be improved must be, at or before the presentation of the petition, a regularly laid out county road, in order to confer power to order the improve-_ . . „ .. . . ment. It is not enough that, alter the petition had been presented, the improvement ordered, and the work commenced, it had then been declared by resolution of the county board a county road. If the county board had power to so declare, it would not meet the positive requirements QJp a0fc; but the board of county commissioners has no power to establish highways by resolutions. (Noffzigger v. McAllister, 12 Kas. 315; Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 id. 129; Shaffer v. Weech, 34 id. 595.) So that, neither at the time the petition for improvement was presented, nor during the continuance of the work of improvement, was Tenth street a county road, or a regularly laid out road. This is conclusive against the power of the board of county commissioners to consider the petition or order the improvement. But the court finds that by reason of the plaintiff’s land being in the vicinity of the improvement; and he residing thereon; and that the improvements were and are of great value to the property; and that he has received benefits therefrom greater than the cost of improvement taxed to him, and different from the general public; and that he knew that Ninth street was not a county road and never had been up to the time of the filing of the petition; and that he knew that the improvements were being made under the law of 1887; and that his land was within the half-mile limit and would be assessed with its proportionate share of the cost of the improvement — that by all these facts he is estopped from asserting that Ninth street was not a county road. It is said in reply to this, and very truthfully said, too, so far as many of these findings are concerned, that there is absolutely no evidence to sustain them. There is evidence tending to show that tbe land of Barker is in the vicinity of this street; that he has resided thereon for many years; .that the improvement of the street was of some value to his property ; that he has received benefits therefrom; that he knew that the improvements were being made under the law of 1887; and that his land was within the half-mile limit; but apart from the nearness of the improvement to his land and his long residence thereon, there is no fact shown or attempted to be shown from which any inference could possibly be drawn that he knew that Tenth street was not a county road. The proof of knowledge ought to be reasonably clear and strong before it is adjudged that he is estopped by it. We think that there is no evidence to sustain the finding of knowledge. If. there was, it is hardly free from doubt, under the case of City of Leavenworth v. Laing, 6 Kas. 274, that Barker is not estopped from asserting the jurisdictional defect that it was not a county road that was being improved. The cited case is very like this one, the similarity in facts is strong, and in principle very great. In that case, Laing was a resident of the city, knew that his land was being graded, and made no« objection thereto. It appears that the grading was of great benefit to him, but no street or road was ever laid Out or dedicated through his land. He enjoined the collection of an illegal assessment, as is done in this case. Laing knew that there was no road or street laid out through his land. There the proof of knowledge was positive, direct, and uncontro-verted. Here a fact is found from which an inference of knowledge might arise. This court held that Laing, with positive knowledge of the jurisdictional defect, was not es-topped, and following that decision, with a belief that it is the true rule in cases of this character, we now say that Barker is not estopped. Whatever may be said about irregularities of all kinds and non-jurisdictional defects, we believe that it is not within the authority of any person or party in interest, by their action, or silence, or express assent, to confer a power upon tribunals of limited and special jurisdiction that the law has expressly withheld.
II. As to Third street: The same state of facts exists with reference to this street that was found as to Tenth. It never was a county road, or a regularly laid out road. All of this street had been laid out as a street through certain lands platted by the owners, but had not been used or traveled as a road. The owners of the land executed a deed t0 the county. The street was declared a county road by resolution of the county board. The boundaries of the city of Kansas City were extended so as to include the improved portion of the street before such improvements were completed. The questions, therefore, as to this street (there being the same findings as to residence and knowledge) are the same as discussed and decided above with reference to Tenth street.
III. As to Fifth street: The finding of the trial court is, that this street, where improved, was regularly laid out as a county road, and had been traveled as such many years prior to the presentation of the petition for improvement. The petition omitted one of the essential requirements prescribed by the second section of the act, in this: it did not state the time for which the assessments for the payment of the improvement' are to be made. While Fifth street was a county road, it was only forty feet wide; it was improved to the width of forty-two feet a part of the way, and fifty-two feet the remainder, with a sidewalk fourteen feet wide on each side of the improved way. In view of other fatal defects, it is not now necessary to pass upon the question as to whether or not the omission in the petition to state “the time for which assessments in payment thereof are to be made,” as required by the second section of the act, is jurisdictional, or a mere irregularity that does not deprive the county board of the power to act. The other enumerated defects are such that they cannot be sustained under any friendly construction of the provisions of this statute.
The road might be improved to its full width in accordance with a fair construction of the act, taking neither economy nor utility into account, but when it is stretched beyond the boundaries of the road on either side to the extent of two or ten feet, such a departure from its width as regularly laid out and declared is not only without authority, express or implied, but is so clearly void that it is almost incredible that such an official tribunal as the board of county commissioners would have ever conceived the idea or tolerated a suggestion of it. But when, in addition to an arbitrary improvement in excess of the legally-established width of the road, the commissioners add the cost of sidewalks on each side fourteen feet wide, all pretense of compliance with the avowed purpose of the law is gone. They convert a road forty feet wide — a width established under the provisions of the general road law — into one seventy feet wide a portion of its length, and the remainder eighty feet wide, by an unauthorized contract for improvement. These things are wholly unauthorized by the statute and are absolutely without power and authority, and are not binding on the plaintiff in error, and in the very nature and essence of things ought never to be permitted to be successfully enforced by any court.
The same facts are urged as an estoppel against the plaintiff in error as in the other two streets. Some of these facts relied upon to estop him are sustained by evidence, the others are not. We have considered these findings in the Tenth street matter — they apply to all three of the streets taken together, and are not made specific as to each street. These attempts to exercise powers not granted in terms or fairly implied by the act render the assessments levied on the land of the plaintiff in error for the improvement of Fifth sf.ree£ voic]; an(J there are no sufficient facts pleaded or found to estop him from asserting the jurisdictional defects enumerated. It may be said that, as Fifth street was found to be a regularly laid out and traveled road, the cost of the improvement to the width of forty feet is valid, and the plaintiff in error ought to have tendered or paid the tax on the legal width before he can ask to have the illegal part restrained from collection. If the tax had been so itemized and segre gated so that the defendant in error, or the officers, could by computation arrive at the amount assessed for the improvement of the forty feet in width, this ought to and would have been required. But the record, so far as it shows about the assessments for the improvement of Fifth street, recites an aggregate sum of $940.75 assessed against the land of the plaintiff in error, and it does not appear that the plaintiff had or could have had any means by which to determine what was the amount of legal taxes, if any there be, that was assessed against his land for the improvement of the legal width of the Fifth street road.
We recommend that the judgment of the district court, as to the assessments for the improvement of Third, Fifth and Tenth streets, be reversed, and the cause 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.:
The record sufficiently shows, that at the time of the condemnation proceedings Luther C. Challis was the owner of lot 1, in block 23, in the city of Atchison. The perpetual use of this lot, or the north one hundred feet of the same, has been acquired by the company for the purpose of maintaining a union depot for the use of the railroads entering the city of Atchison, and for the convenience and accommodation of its citizens. Any question of the regularity of the condemnation proceedings has been set at rest by the action of Challiss in first appealing from the award of damages, and, second, by an acceptance of the $19,330 that was awarded and deposited by the company with the county treasurer as compensation for the property appropriated. Prior to the deposit and payment of the award, the city council vacated that portion of Third street on which lot 1 fronted, and Challiss claimed that in consequence of the vacation the title to that portion of the street passed to him, and not to the company which had acquired the abutting lot. The court held that Challiss was not the owner nor entitled to the possession of the vacated portion of the street in front of the lot in question, and granted an injunction restraining him from interfering with the company in the use and occupation of the same. The statute in relation to the vacation of streets in cities of the first class provides that —
“Whenever any street, avenue, alley or lane shall be vacated, the same shall revert to the owners of real estate thereto adjacent on each side, in proportion to the frontage of such real estate, except in cases where such street, avenue, alley or lane shall have been taken and appropriated to public use in a different proportion, in which case it shall revert to adjacent lots or real estate, in proportion as it was taken from them: Provided, That when, in the opinion of the council of any such city, it is necessary to re-open such street, avenue, alley or lane, they may order the same opened, without expense to the city.” (Gen. Stat. of 1889, ¶ 582.)
We think the court ruled correctly in excluding the plaintiff in error from the use and occupation of the disputed premises. The fee of the street was never in him, and hence, in a strict sense of the term, there was no reversion. The fee of the streets is in the county for the use of the public, and the control of the same has been placed by the legislature in the city. Aside from the accommodation of the general public, the streets afford access and frontage to the property which abuts thereon; and these rights are incidental and appurtenant to such property, and pass by any conveyance or by condemnation of the same. By the condemnation proceedings, the company acquired the perpetual use of the lot — a use which in its nature practically excludes any other use or occupancy. Through the appropriation of the lot, the company acquired the incidental and appurtenant rights in the street, and upon the legal vacation of the street, that portion situated in front of lot 1 temporarily became, as it were, a part of the lot, and passed to the company. The status of the vacated portion of the street cannot now be regarded as an open question in this court, and we need only follow a former decision, wherein substantially the same question -was considered and determined. (A. T. & S. F. Rld. Co. v. Patch, 28 Kas. 470.) In that case, Patch was the owner in fee of certain lots in the city of Topeka, and the city council passed an ordinance vacating the street in front of her lots. Afterward the railroad company appropriated the lots through-condemnation proceedings, and the report of the commissioners showed that they appraised the lots by name, without any survey or indication of what was embraced within the designation. The owner of the fee contended that as the street vacated was not named in or covered by the commissioners’ report, it became her property upon the passage of the ordinance vacating the street, and she asked for an injunction restraining the company from occupying such part of her property; while one contention of the company was that it passed to the adjacent lot-owners, and became in fact a part and parcel of the lots, and was therefore covered by and em braced within the condemnation of the lots. The court did not at that time determine whether upon the vacation of the street it reverted to the original proprietor or passed to the adjacent lot-owners. The latter view has since been adopted by this court. (City of Belleville v. Hallowell, 41 Kas. 192.) In the Patch case, it was held that if it passed to the adjacent lot-owner, then it became something in the nature of an accretion to and would pass in any conveyance of the lot, and that the statute providing for the vacation of the street was only a temporary cession of the street for public use, which might be resumed at any time whenever in the opinion of the council it was necessary to re-open the same. Mr. Justice Bbewer, who delivered the opinion of the court, stated that if the theory that the vacated street passed to the adjacent lot-owner was adopted —
“It would seem from the proviso to the section we have quoted that there was no absolute cession of the property to such adjacent lot-owner, but only a provisional and temporary giving up of the public use; for the lot-owner takes it subject to the right of the city to re open it without expense. In other words, the city permits the lot-owner provisionally and temporarily to hold and occupy the portion of the vacated street in front of his lot. Under these circumstances, we think it fair to consider that it becomes, as it were, a part of the lot — something in the nature of an accretion to it; and if so, then any conveyance of the lot takes with it this attached portion of the vacated street.”
Following the rule of that case, which is decisive of this, we must hold against the contention of the plaintiff in error. The fee of the street not being in the owners of the adjacent lots, as in Massachusetts, the case of Harris v. Elliott, 10 Pet. 25, and some other cases cited, do not apply here.
Something is said against the validity of the vacation of the street, but it follows from the decision made that the private rights of plaintiff in error are not so infringed as to warrant him in raising that question. Neither is he authorized to appear in behalf of the public; and hence, we will not enter upon a consideration of the validity of the vacation ordinance, nor the right to use the vacated portion of the street for the contemplated purposes.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
GreeN, C.:
This was an action on a constable’s bond. The defendants answered, but «through mistake of counsel no defense was made. Judgment was rendered in favor of the plaintiff, but no motion was made for a new trial. The case is brought by the plaintiffs in error to this court, and a reversal is asked for errors, going to the foundation of the action and judgment, apparent from the record.
The first objection urged against the petition is, that it does not set out a cause of action, or allege title to the property taken by the constable. The petition alleges that Samuelson, the defendant in error, was in possession of certain property, by virtue of a chattel mortgage, and complaint is made that no ownership was thus alleged. This may be true in the first part of the petition, but it is stated in another paragraph that Richardson seized and held property belonging to the plaintiff, and that by reason of his seizure and holding of goods and property of plaintiff a right of action accrued to to him on the bond, and against the sureties. This we think a sufficient allegation to uphold a petition after judgment.
It is next contended that there was no statement of facts in the petition showing that plaintiff had a right to the possession of the mortgaged property; that the plaintiff below sued as mortgagee, and should have alleged by proper aver-ments that he was entitled to the possession of the property levied upon. A reference to the petition discloses that it contains an allegation that Richardson, as constable, seized certain property while in the possession of the plaintiff, and by force removed it from his possession and refused to deliver the same to him. This we think a sufficient averment of possession, and that such possession was interfered with by the constable.
The plaintiffs in error further insist that the petition and judgment in this ease are based upon the assumption that an extra-official act of an officer constitutes a breach of the bond; that in the face of the express recital of the judgment, the officer had no process authorizing his acts, and that what he did was without right or authority; that no judgment on the bond was legal, because the act recited was a mere trespass upon the part of the officer. The answer was a justification that the property seized was taken by virtue of a writ of attachment issued by a justice of the peace, and that it was in pursuance of such writ that the goods were levied upon. The language of the judgment is that Henry W. Richardson, constable, had no process authorizing him, as constable, to seize and take the property in controversy from the possession of the plaintiff, and not that he had no process; so that the position of counsel for plaintiffs in error is not tenable upon this point.
A further objection is made that no breach of the condition of the bond was averred in the petition, and that no cause of action arises on an official bond until a breach and the fact of a supposed breach are distinctly stated by proper allegations. A reference to the petition is an answer to this objection. The allegation of the petition is that Henry W. Richardson, as constable, seized the property in question while in the possession of the plaintiff, and by force removed it from his possession, and still refuses to deliver the same to the plaintiff. This, we think, is all that the law requires.
It is again urged that the petition lays no foundation for any measure of damage, and that the judgment gives damages not warranted by the allegations of the petition; that the petition contains no averment of value. The petition states that the goods seized and still held belonged to the plaintiff, and were of the value of $190. This allegation, we think, is sufficiently clear and definite to support the judgment.
The same answer will apply to the last objection, that there is no allegation of damages in the petition. The value being stated, and the further allegation that the plaintiff was deprived of said goods, is sufficient to support the judgment.
We recommend an affirmance of the judgment of the court below.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Marshall, J.:
The defendant was convicted on five separate counts, in one information, of being a persistent violator of the prohibitory liquor law, and was sentenced to one year- in the penitentiary on each count, in all five years. The defendant appeals, and urges:
1. Error in denying the motion to quash information.
2. Error of the court in instructing jury.
3. Error in overruling a challenge to a juror.
The matters complained of in the instructions are:
(a) Instructing the jury that they might find the defendant guilty on the first, second, third, fifth, and sixth counts of the information.
(5) In not instructing the jury that these counts constituted but one oífense..
(c) In instructing the jury concerning the giving away of intoxicating liquor, as a shift or device, etc.
No other error is pointed out. No special instructions were asked.
1. In The State v. Briggs, ante, p. 92, 145 Pac. 866, this court said:
“Under chapter 165 of the Laws of 1911 a sale of liquor or the maintenance of a nuisance in violation of the prohibitory law by one who is shown to have pre viously violated such law is deemed to constitute such person a persistent violator.
' “Whether such repeated violations be few or many as shown by the evidence on the trial of a charge consisting of one or many counts they constitute not many offenses but one, the penalty for which is imprisonment in the penitentiary at hard labor for not more than one year.” (Syl. ¶¶ 1, 2.)
In The State v. Shiffler, 93 Kan. 618, 144 Pac. 845, this court said:
“When called upon to prosecute a persistent violator of the prohibitory law under the statute relating to that subject (Laws 1911, ch. 165, § 1), the county attorney is not obliged to rest his case upon the evidence he may procure relating to some single violation occurring subsequent to a conviction. He may allege in a single count, or in several counts, as many subsequent violations as he may be informed of, and he may go to the jury, without being required to elect, upon all the proof he has. He must establish one to warrant a verdict of guilty, but any one will be sufficient, and whether he establish one or more than one, he has simply proved the defendant to be a persistent violator guilty of a single offense, or an entire offense, to which a single penalty is affixed.” (Syl.)
Each count of the information now attacked sufficiently charges an offense under the law. The complaint is that all the counts of the information charge but one offense, and that the motion should have been sustained for that reason. The same question was urged in The State v. Shiffler, above cited, with the result shown in the quotation above set out. The motion to quash was properly denied.
2. The next matters of complaint concern the instructions to the jury. The first of these is the same as that embraced in the motion to quash. In The State v. Briggs, supra, where the defendant had been convicted on two counts, and sentenced to the penitentiary for one year on each count, this court did not reverse the judgment and grant a new trial, but directed the trial court to set aside the judgment on the second count.
3. Complaint is made of an instruction to the jury concerning giving away intoxicating liquor, as a shift or device, for the purpose of evading the provisions of the prohibitory liquor law. It is claimed that this provision of the statute (Gen. Stat. 1909, § 4872) has no application to prosecutions for a felony. This section is a part of the prohibitory liquor law of this state. A person can commit an offense against that law by shift or device, and it does not make any difference whether it, is the first offense or the last, nor whether the offender has been prosecuted and convicted before or not. He can make a sale of intoxicating liquor through some shift or device, in committing a misdemeanor, or in committing a felony. A felony does not consist in the manner in which the offense is committed, but in the commission of the offense after having been convicted. This instruction was proper.
4. Complaint is made that the court overruled defendant's challenge to juror Keasling. This juror, on his examination by counsel, testified that he had heard-of the case; that he might have formed some impression but had no opinion concerning it; that the fact that the defendant was in court charged with violation of the law is a little weight, but he formed no opinion from that, but from that he did receive an impression that would take evidence to remove. However, on being questioned by the court, he testified positively that he would try the case on the evidence, and that the fact that the defendant was in court charged with an offense would not cut any' figure with him in weighing the testimony.
In The State v. Molz, 91 Kan. 901, 139 Pac. 376, we find this:
“Gillock testified, among other things, on his examination that he had formed such an opinion in the case as would require some evidence to remove; that he did not believe he could go into the trial with as fair and unbiased an opinion as he would have if he had not heard of the case; that he thought he had an opinion based to a certain extent upon statements that had been made to him by parties who purported to know the facts; that notwithstanding what he had heard he thought he could sit as a juror in the trial of the case and be governed according to the law and the evidence and render a fair and impartial verdict. . . . After all that has been said and written on the subject, the question of the competency of a juror is a question of fact to be determined by the court, and unless it is evident that the court has made a mistake to the prejudice of the accused, its decision as to such qualification should not be reversed.” (p. 902.)
‘ The court tried the question of the competency of this juror, and overruled the defendant’s challenge. We do not think there is any error in this. (The State v. Spalding, 24 Kan. 1; The State v. Rogers, 54 Kan. 683, 687, 39 Pac. 219; The State v. Labore, 80 Kan. 664, 103 Pac. 106; The State v. Stewart, 85 Kan. 404, 116 Pac. 489; The State v. Pearce, 87 Kan. 457, 124 Pac. 814.)
Following The State v. Briggs, ante, p. 92, 145 Pac. 866, the judgment in this case should be affirmed as to the first count, and the sentence set aside as to the remaining counts, upon which the defendant was convicted. This is the judgment of this court.
Dawson, J., not sitting.
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The opinion of the court was delivered by
Mason, J.:
In litigation over the enforcement of mechanic’s liens an appeal was taken to this court, which resulted in a final disposition of the controversy except as to one issue, upon which a new trial was ordered. That issue was whether two stone crushers had ever been actually attached to the realty. (Geppelt v. Stone Co., 90 Kan. 539, 135 Pac. 573.) Upon the new trial the district court decided that they had been so attached and gave judgment accordingly. This decision is now appealed from.
The case must be determined by the legal effect of these findings of the trial court, which, although challenged by the appellant, are found to be supported by the evidence: The two crushers combined, with their equipment, constituted a stone-crusher plant. They were purchased for that specific purpose and constituted a unit, this being understood by both buyer and seller. The purchaser constructed concrete foundations for such plant, bolted the base of the larger crusher thereto, and assembled the portions of this crusher to their proper places. “The stone crusher plant in question, complete, requires two crushers, a large one to reduce the rock in size, and a smaller one to make the finished product, connected by a chute from the larger to the smaller, the larger being so erected as the material by gravity will run from the larger to the smaller crusher — the whole being a unit for the purpose of the manufacture of the commodity of crushed rock as before stated, each part being essential and indispensable to a complete plant as intended.”
From these findings it appears that when work was suspended the base of the larger crusher was physically attached to the foundation, and that its various parts were in the process of being fitted into place, but that the smaller crusher was not attached to the realty, unless upon the theory that it was a part of a single unit, the actual attachment of a large part of which resulted in a constructive attachment of the whole. We think this principle of constructive attachment may be applied to any portions of the large crusher which had not been placed in position. (19 Cyc. 1045, note 51.) But we can not regard it as applicable to the smaller crusher. Notwithstanding the contemplated use of the two crushers in connection with each other, and notwithstanding the necessity of each to an efficient plant, the smaller crusher was in fact a complete piece of machinery, capable of separate and independent operation. Until it or some considerable part of it was actually affixed to the base it remained personal property.
The cause is accordingly remanded with directions to modify the judgment so far as it relates to the smaller crusher.
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The opinion of the. court was delivered by
Porter, J.:
This is a railway-crossing case in which the plaintiff recovered a judgment, from which the defendant appeals.
The material facts are not in dispute. They appear from the plaintiff’s testimony as well as by the special findings of the jury. The accident occurred in the railway yards at Newton, about half a mile southwest of the station where First street Crosses twelve tracks at an angle of about 45 degrees. It occurred on the eighth of these tracks, counting from where the plaintiff approached the right of way. It was in the middle of the afternoon of a bright, clear day in September. The plaintiff was going in a southeasterly direction, and was driving a horse and light road wagon. He was very deaf. He was familiar with the crossing and had traveled over it every day for several years. The train which struck him was a passenger train, coming from the southwest, and the jury found that it was running at an excessive rate of speed. The engine bell was ringing from the time the train entered the city limits up to the time of the accident, but on account of the plaintiff’s deafness he was unable to hear it. After coming upon the right of way there was a clear view of the railway tracks for a distance of about a mile southwest, unless the view was temporarily obstructed by the presence of cars or engines upon some of the tracks. The obstructions which prevented the plaintiff from seeing the approach of the train when he first came upon the right-of-way consisted of cars standing on what is known as the “stockyards track,” and also a moving switch engine with some cars attached which were upon the second track from the place of the accident. After reaching this second track and passing the switch engine, plaintiff had an unobstructed view fo;r one-half mile of the track upon which the passenger train was approaching. • It was twenty-eight feet from the track where the switch engine was to the track where he was struck, looking at right angles, but if the plaintiff followed the center of the street in the general direction he was going, the distance was forty-eight feet between the track upon which the switch engine stood and the track where the accident occurred. The plaintiff testified that he was looking and watching for trains, but the undisputed facts disclosed- by his evidence show that this can -not be true. His horse’s head was over the first rail of the track when plaintiff discovered the train. The plat introduced by the plaintiff showing the location of the tracks, and his own evidence and that of other witnesses who testified for him, show beyond controversy that he could have seen the passenger train if he had looked after he reached the track where the switch engine had obstructed his view. He was then at least forty feet from the point at which he testified he first saw it.
The jury found that the railway company was negligent in running its train at an excessive rate of speed. Conceding the negligence of the company as established, the plaintiffs own negligence, under repeated decisions of this court, prevents his recovery. The jury made a finding that after the plaintiff entered upon the right of way there was no place where, if he had kept a constant lookout, he would have seen the approach of the train in time to avoid the accident, but this finding is in direct conflict with the undisputed facts as disclosed by all the testimony. The plaintiff testified that he first saw the approach of the train when his horse’s head was over the first rail of the track. The track upon which the switch engine was moving, and which had up to that time obstructed his view, was twenty-eight feet in a direct line from the track where he was struck, but, as stated, the distance between the two tracks following the center of the street, was forty-eight feet.
We may leave entirely out of consideration the various obstructions which interfered with plaintiff’s view before he reached a place where the switch engine and cars on the second track no longer prevented him from seeing. After he reached this point he had, if he had looked, an unobstructed view for a great distance to the southwest, and must necessarily have seen the approaching train if he had looked in that direction. Because of his deafness he was obliged to rely entirely upon what he could see. In such a situation common prudence made it his duty to stop, if necessary, and look; but in any event, it certainly required that he look before driving his horse upon the track.
The duty of a traveler in approaching a railroad crossing has been so frequently stated in former decisions that it will only be necessary to refer to a few of them which demonstrate that the trial court should have sustained the demurrer to the evidence. The passing switch engine and cars obstructed plaintiff’s view and. made it unsafe for him to proceed across this network of tracks until the switch engine and cars' had passed and he could obtain a view of the other tracks. The obstruction was a temporary one, and ordinary care for his own safety required him to check his progress until the obstruction passed. Exactly the same principle was applied in the case of C. K. & W. Rld. Co. v. Fisher, 49 Kan. 460, 30 Pac. 462. In the opinion it was said:
“We think the judgment of the court below must be reversed. In our opinion, it is the duty of any person intending to cross a railroad track where he knows that trains frequently pass, and where he knows that one is likely to pass at any moment, to look as well as to listen, and if dust should temporarily obscure his view, to wait until the dust shall pass away before he attempts to cross.” (p. 485.)
To the same general effect is Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624; Railroad Co. v. Willey, 60 Kan. 819, 58 Pac. 472; Carlson v. Railway Co., 66 Kan. 768, 71 Pac. 587; Railway Co. v. Jenkins, 74 Kan. 487, 87 Pac. 702, and 79 Kan. 17, 98 Pac. 208; Bressler v. Railway Co., 74 Kan. 256, 86 Pac. 472; Railway Co. v. Wheelbarger, 75 Kan. 811, 88 Pac. 531; Beech v. Railway Co., 85 Kan. 90, 116 Pac. 213; Palmer v. Railway Co., 90 Kan. 57, 60 Pac. 736. In the case last cited it was said:
“Where a traveler, approaching a dangerous crossing at the rate of from six to eight miles an hour, where the track is obstructed, fails to stop to look or listen, and drives upon the track and is injured, he is guilty of contributory negligence, barring recovery.” (Headnote.)
The judgment must be reversed and the cause remanded with directions to render judgment for the de-' fendant.
Johnston, C. J., and West, J., dissenting.
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The opinion of the court was delivered by
Johnston, C. J.:
On an appeal from the probate court in which a recovery was sought upon a promissory note alleged to have been executed April 2, 1906, by C. J. Corbin in favor of J. T. Brock, which became due one year after date, it appears from the testimony that Corbin had died and that his wife, who was adminis-tratrix of his estate, made a verified denial of the execution of the note. Demand for payment was made to the administratrix on February 10, 1913, and the claim was filed in the probate court on February 11, 1913. Upon its face the note appeared to be barred by the statute of limitations. To overcome the defense that the debt was barred Brock offered to testify that payments of interest had been made by Corbin to himself within the period of limitation and also that the payments had been endorsed by himself on the note. As the offered testimony related to transactions Brock had personally with the deceased in a case where the adverse party is administratrix of the estate it was properly excluded under section 320 of the civil code (Laws 1911, ch. 229, § 1). No other testimony being offered, the demurrer of the defendant to the evidence of the plaintiff was necessarily sustained. Plaintiff complains of the ruling, but suggests no reasons for reversal and makes no argument in support of his complaint.
Plaintiff also complains of the ruling of the court refusing a motion for a new trial, which was based mainly on the ground of newly discovered evidence. In an affidavit he alleges that since the trial he has discovered one witness who would testify that in the spring of 1908 he heard Corbin say that he had made a payment to Brock upon the note, and also another witness who would testify that in 1908 Corbin stated that he had paid something on his note to Brock. In the proposed new testimony there is no identification of the note on which the alleged payments were made, nor is the time of the year when they were made stated. To avoid the bar of the statute of limitations it is necessary to show, first, that payments had been made by Corbin on the very note sued on, and, second, that the payments had been made after February 11, 1908. To effectually interrupt the statute by payments it is necessary that there be a certainty as to the identi- , fication of the debt on which it is made, and, as we have seen, that is lacking in the proposed testimony. Then there is the lack of certainty as to the time of payment. If received and considered the testimony would not affect the decision made by the trial court, and before a new trial is granted upon this ground it must affirmatively appear that the new evidence is not only material, is not cumulative, and that due diligence was used to procure it, but also that if produced on another trial it would be sufficient to change the result.
Plaintiff also contends that as he was permitted to testify as to the payments without objection when his claim was presented in the probate court that the defendant waived her right to make the objections on the trial in the district court. The testimony given in the probate court does not appear to have been produced on the trial in the district court, and as that court gave the testimony in the probate court no consideration and made no ruling as to its effect the question is hardly open on this appeal. Only such matters as were heard and determined by the district court are reviewable by this court. If evidence was introduced by the plaintiff in the probate court, with or without obj ection, he can hardly claim that it is newly discovered or that he has any excuse for failing to bring it to the attention of the district court when the trial was had. Besides, the failure of the administratrix to object to incompetent testimony on the trial in the probate court, or even to make a defense on some former hearing, can not be regarded as an acknowledgment of the debt which would affect the bar of the statute, or as a waiver of her right to make such objections and defenses upon the trial as the law authorizes and in the manner prescribed by the code.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
This appeal involves the correctness of certain allowances for attorney’s fees and expenses growing out of a trusteeship. The record is volumi nous, the abstracts covering two hundred twenty pages, but the following will serve as a brief statement of facts: In May, 1905, Fannie Murray, a widow, living at Lancaster, Atchison county, executed to Horace M. Jackson, trustee, a deed of trust covering certain real property in California, “To rent said real property, collect the rents and income thereof, and therefrom pay the taxes, insurance, necessary repairs and charges of every kind and nature upon all of said property, and pay the net proceeds of interest, income and principal, whether derived from such sale or from the insurance collected in case of loss of such property after the payment of said taxes, insurance, repairs and charges and costs of the execution of such trust, to the Woman’s Home Missionary Society of the Kansas Conference of the Methodist Episcopal Church, and to the Woman’s Foreign Missonary Society of the Methodist Episcopal Church,” a New York corporation, in equal parts, to be held as a permanent fund, and the earnings thereof to be used in the cause of missions carried on by the two societies. Fannie Murray was a member of the Methodist Episcopal Church and also of the Woman’s Home Missionary Society of the Methodist Episcopal Church of the Kansas Conference, an unincorporated association, which was auxiliary to and governed by an Ohio corporation, the Woman’s Home Missionary Society of the Methodist Episcopal Church. She was also a member of the local auxiliary of the Kansas Conference Society and attended some of its meetings when able. ■ Fannie Murray died September, 1906, and before January, 1908, the trustee had converted the real property into money and securities. The Kansas Conference Society was composed of about one thousand members, organized into auxiliary societies located within the boundaries of the Kansas Conference, and it met in annual delegate convention, and was governed by a constitution and by-laws prescribed by the Ohio corporation to which it was tributary. The money raised by the various auxiliaries within the Kansas Conference was remitted by the treasurer to the treasurer of the Ohio corporation and disbursed by the latter in accordance with the pledges made to the conference. At the time of Mrs. Murray’s death the conference was remitting about $1400 a year, which afterwards grew to $3000, from one hundred to three hundred dollars of which was disbursed for missions within the Kansas Conference. The Methodist discipline did not recognize or permit the organization of the Kansas Conference Society as an independent body, but only as subordinate to the Ohio corporation. It was found that the name used in the trust deed was intended to mean the Woman’s Home Missionary Society of the Methodist Episcopal Church of the Kansas Conference and that there was not at the time any society or organization having a similar name intended to be designated by the donor; that the trustee was an attorney at Atchi-son of high standing and many years’ experience as a lawyer, which facts were known to the officers of the conference society; that he advised one of such officers that the proper way to take the trust donation was to organize a corporation; that the Ohio . corporation was not entitled to the fund, and that he would pay it only to a corporation organized under the laws of Kansas named in accordance with the designation in the trust deed. Such incorporation was attempted by the officers of the Conference Society, but the trustee was not satisfied with the name, and prepared and submitted a proposed charter. About this time a number of the officers of the Kansas Conference Society held a meeting and filed the charter of the Woman’s Home Missionary Society of the Methodist Episcopal Church of the Kansas Conference. The trustee declined to recognize this corporation because its name was not the one used in the trust deed. Shortly thereafter several women held a meeting as directors of the Woman’s Home Missionary Society of the Kansas Conference of the Methodist Episcopal Church — the name designated in the proposed charter already referred to — and undertook to authorize the president, secretary and treasurer to receive the funds and deposit them in a certain bank, and to empower the president to enter the appearance of the society in a suit to be brought by the trustee if so advised after consultation, the proceedings of the meeting being in accordance with the minutes furnished by the trustee along with the proposed draft of the charter. After some correspondence between these women and the Ohio corporation the latter advised referring the matter to a competent attorney and to avoid complying with the requirements of the trustee if possible. Such consultation was had and they were advised to comply, and the proposed charter was executed and filed with the secretary of state. The trustee brought suit in Atchison county against the two corporations to ascertain which one was entitled to the fund, and a decree was rendered, with the consent of the president of the conference society, directing the trustee to pay one-half of the proceeds of the trust property to the newly incorporated society, although no authority so to consent had been conferred by the society or by its executive board. Some controversy arose between this corporation and the Ohio corporation touching the application of the trust fund, followed by attempts to compromise which failed. The plaintiffs herein were duly appointed and authorized to bring this suit on behalf of the Kansas Conference Society. The court below decreed that this society was entitled to the fund when properly incorporated, and that until such incorporation the fund should be deposited in a certain bank.
It appears that for about five years the trustee devoted much time, attention and labor to the trust dur ing which period certain heirs of Fannie Murray sought to gain control of the fund and many complicated matters growing out of the claims of the various church societies caused considerable perplexity and litigation. When the deed was executed the property was supposed to be worth from two thousand to three thousand dollars, but the trustee succeeded in realizing about twenty-three thousand dollars, and by counting the interest and increase the fund considerably exceeded that amount. The sum claimed and allowed, exclusive of expenses, was $2750, and there was evidence of the reasonableness of this sum. Twelve hundred and fifty dollars of this was on account of services and expenses to the Woman’s Foreign Missionary Society, but that society receipted for its part of the fund with no apparent objection to this charge, and it is not a party here, and this portion of the allowance does not concern the plaintiffs. Certain other allowances on account of fees and expenses to other parties and attorneys are involved and complained of, but the main contention is over the $1500 allowed the trustee. Decisions are cited to the effect that the trustee can not be paid from the fund for unnecessary services or for those rendered in bad faith, and it is argued that those rendered in this case were not only inexcusably needless' but in an effort to prevent the trust fund from reaching the beneficiary — which amounts to a charge of bad faith. But the able and careful trial judge who heard the voluminous evidence and saw and heard the principal contenders in this complicated strife thus expressed his views:
“The position occupied by the defendants was not without a sanction of authority. Mrs.-and her associates have been advised by Mr. H. M. Jackson, a lawyer of high standing, that their position in the matter was correct, and the District Court of Atchison County had so adjudicated as between the original trustee and the corporation organized to act as a permanent trustee. There was some acquiescence in this disposition of the matter on the part of the officers of the Kansas Conference Society, at least until it was found that it was deprived of practical control of the trust fund. The question presented in this present action as to the proper solution of the controversy arising between the contending factions was not without difficulty. I do not feel that this is a case in which it can be said that the contentions of the defendant were without merit.”
The court, as already stated, expressly found that the trustee “was an attorney at law at Atchison, Kan., of high standing and many years experience as a lawyer,” and we have neither cause nor disposition to overturn this finding or go counter to these views.
That a trustee acting in good faith may be paid a • reasonable allowance out of the fund seems not to be disputed, but it is urged that the sum allowed is too large in any event. But the rule is well supported that when the trustee renders professional services for the benefit of the estate he is. allowed such compensation as is fair and reasonable under all the circumstances. (Nelson v. Schoonover, 89 Kan. 779, 132 Pac. 1188; Perkins’s Appeal, 108 Pa. St. 314, 56 Am. Rep. 208; Williams v. Gibbes et al., 61 U. S. 535, 15 L. Ed. 1013; 28 A. & E. Encycl. of L. 1044; 39 Cyc. 485.)
Per cents deemed reasonable by other courts under other circumstances are adduced, but they are merely persuasive. Here we have a fund derived from an estate on the Pacific coast, whither the trustee once journeyed in pursuit of knowledge touching the real value of the property. The accounts themselves found in the record give evidence of multifarious transactions, and the matters and mutations not mentioned in the foregoing statement of facts are numerous and full of variety. The trial court, with far better opportunity to weigh and correctly determine the evidence and its effect, deemed the allowance reasonable, and no ground is apparent for disturbing this conclusion.
Notwithstanding all the conflict and rivalry over the fund in controversy, it is pleasing to observe that the entire record sounds no note discordant with the sin cere desire of all the persons, societies and corporations involved to devote the proceeds of the trust to real missionary purposes in substantial accord with the desire of the donor. It must be remembered that a supposedly small donation developed into one of considerable size, and the trustee, who seems to have had the management of the trust thrust upon him, was solicitous that when the fund left his hands it should go to a proper and legal successor, and after all the trouble and turmoil it is clear that the great church organization controlling all the societies and auxiliaries which have appeared in the history of the trust has had and will continue to have the benefit of the fund, so that there is no danger of its waste or diversion from the real purposes intended.
Various questions of law and equity were propounded to the trial court and are argued in the briefs, but their further consideration is unnecessary, for enough has been said to show that the real matter in issue — the trustee’s allowance — is free from material error of which the plaintiffs can complain.
The items going to others for expenses and attorney fees are of still less difficulty and are approved.
Complaint is made that the trial court, under the guise of retaxing costs, changed the judgment or decree as to these allowances, after the term. But the court stated that the decree was prepared by plaintiffs’ attorneys “and was signed by the court without consideration of the matter of costs, and there is undoubtedly authority to retax the costs at the present term.” It it proper at any time to make the journal entry speak the truth, and the motion was to correct the record of the judgment so as to make it speak the truth. (National Bank v. Wentworth, 28 Kan. 183; Chemical Co. v. Morrison, 76 Kan. 799, 92 Pac. 1114; Graden v. Mais, 83 Kan. 481, 112 Pac. 107; The State v. Linderholm, 90 Kan. 489, 493, 135 Pac. 564.) While so correcting the entry the court retaxed certain costs, and in this there was no error. (Linton v. Housh, 4 Kan. 535; Clippenger v. Ingram, 17 Kan. 584; Edwards v. Bank, 67 Kan. 67, 72 Pac. 534; Crane v. Cameron, 71 Kan. 880, 882, 81 Pac. 480, 87 Pac. 466; see, also, Anderson v. Cloud County, 90 Kan. 15, 132 Pac. 996; Meyn v. Kansas City, 91 Kan. 29, 30, 136 Pac. 898; Reeves v. Ryder, 92 Kan. 168, 139 Pac. 1028.)
The decree is affirmed.
Marshall, J., and Dawson, J., not sitting.
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The opinion of the court was delivered by
West, J.:
The defendants seek by this rehearing to have reconsidered the rule announced in the former decision (Super v. Modell Township, 92 Kan. 979), that townships taxes may be levied to pay a judgment recovered for injuries received by reason of a defective highway, under the classification of “other purposes” found in section 9584 of the General Statutes of 1909, which provides that the trustee shall at the July session of the board of county commissioners, annually, with the advice and concurrence of the board, levy a tax on the property in the township “for township road and other purposes.” It is insisted that the former decision was wrong in- that the words “other purposes” were given an elasticity of meaning not justified by the constitution, statute and decisions. The theory of the former ruling was that the legislature has made townships liable for injuries caused by defective highways; that such liability is not an ordinary township expense; that no special provision is made for the levying of a tax to pay such a claim; that by section 9423 of the General Statutes of 1909 the township trustees are empowered to determine and fix the rate of levy and taxation in their respective townships for township purposes and to levy a tax for township purposes not to exceed three-fourths of a mill on the dollar, the next section providing for the levying of a tax not exceeding three-lourths of a mill for the creation of a fund to improve roads and highways and to be kept separate from other township funds; that the township had power to levy for other purposes before these provisions were enacted (Laws 1909, ch. 256, § 1) and they do not limit such authority.
When the townships were first made liable for injuries of this kind (Laws 1887, ch. 335) their authority to levy taxes covered “township, road and other purposes,” and as no separate provision has been made authorizing a levy for the express, purpose of paying such claims it 'seems fair to presume that the legislature deemed the general authority to levy for “other purposes” sufficient to provide a fund to pay such damages or judgments recovered therefor. It has frequently been said that when a special liability is cast on a municipality by a statute an implication arises of authority to tax for its payment unless such authority be. expressly withheld. (Rose v. McKie, 145 Fed. 584, syl. ¶ 2, 591.) The question has been reexamined and the majority of the court adhere to the former decision.
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The opinion of the court was delivered by
Porter, J.:
The plaintiff was inj ured as a result of a collision between a street car upon which she was a passenger and a Missouri Pacific freight train at a street crossing in the city of Salina. She brought her action against the street railway company and the Missouri Pacific Railway Company, and recovered a judgment against both for $1200 actual damages and $3000 exemplary damages. Both defendants appeal, and each is willing to cast the responsibility for the accident upon the other.
The street railway occujsies the center of Santa Fe street in Salina, and runs north and south. The tracks of the Missouri Pacific run east and west across Santa Fe street. The south track is known as the “main line” track, and the second is known as the “passing” track. The distance between the two tracks is thirteen and one-half feet. Just before the accident occurred a passenger train from the east came in and stopped at the station with the front end of the pilot of the engine probably five feet east of the street-car tracks. There was a freight train on the passing track which had been cut in two for the- Santa Fe street crossing.
The brakeman of the freight train testified that he remained at the Santa Fe street crossing, and when it became necessary to couple the train together, he walked over the crossing to see that it was clear, and warned some people who were there that the train was approaching; stopped a boy driving a delivery wagon, and gave a signal to back up. He did not notice the street car which was coming from the south, but heard it rattle over what is known as the “mill” track, which was 112 feet south of the passing track, and at that time the freight train was backing east and he was walking east toward the west end of the other part of the train east of Santa Fe street, for the purpose of making the coupling. He .testified that “it never entered in my head that the street car was trying to cross,” and that he had no chance to give the motorman any notice to stop after he discovered that the street car was not going to stop for the crossing.
The negligence charged against the Missouri Pacific was that it gave no notice or warning of its crossing the street by the sounding of a whistle or the ringing of a bell which could have been heard above the noise of the passenger engine, and that:
■ “No person was upon or near the rear end of said moving freight train to either give warning- of its approach or to give signals to the engineer or person in charge of the engine upon said freight train, and no notice or warning of any kind was given to anyone on said street car. of the approach of said freight train to said street car track.”
The special findings show that the street railway company ran its car in which the plaintiff was a passenger across the track in the rear of a backing freight train without having stopped the car before crossing the tracks, and when the backing freight train was in plain view of the motorman in charge of the street car; that the distance between the main-line track and the passing track was thirteen and one-half feet, and that the freight train had commenced to back over the street crossing before the street car passed over the main track of the railway, that is, in front of the passenger engine; that the freight train, when it collided with the street car, was moving from two to three miles an hour; that the rear end of the moving freight cars was about ten feet from the street-car tracks when the motorman ran the car over the crossing; that there was nothing to have prevented the motorman from seeing the moving train when the street car was in safe distance from the crossing, if he had looked; and that the street car was moving from three to five miles an hour when it crossed over.
'The negligence of which the jury found the Missouri Pacific railway guilty was the failure of the brakeman to go to the rear of the train after giving the signal to back up and to remain with the train. They further found that if the street car had been stopped at a point not less than ten nor more than twenty feet from the railway crossing, and the motorman had used care in the operation of his car, the collision would not have occurred; and that his negligence, combined with that of the Missouri Pacific Railway Company, was the proximate cause of the plaintiff’s injuries.
Among other instructions, the court gave the following :
“11. You are further instructed that the statutes of this state provide that it shall be the duty of every street railway company or corporation, operating a street railway across the tracks of a railroad company, to bring its cars to a full stop at least ten and not more than twenty feet before reaching the tracks of the railroad company, unless a flagman is kept at such crossing. It is conceded in this case that a flagman was not maintained at the crossing where the collision occurred, and if you find from the evidence that the employees in charge of the street car failed and neglected to stop the same not less than ten or more than twenty feet from the railroad crossing before attempting to cross the same, and that such failure and neglect directly or proximately contributed to the injury complained of, in no event can such Street Railway Company, defendant, be relieved from the consequences of such failure or neglect.
“15. The jury are instructed that the Missouri Pacific Railway Company, in the operation of its trains along, over and across said Santa Fe avenue, was only required to exercise reasonable and ordinary care to avoid injury to others, and it had a right, in the operation of its said train, to rely upon the assumption that said Street Car Company, in the operation of its cars over such crossing, for the protection of its passengers, would exercise the highest degree of care, and to that end would obey and observe not only the statutory rules and requirements for the protection of its passengers, but would exercise the highest degree of care.”
These instructions were the law of the case which the jury were bound to follow. (Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797; Railway Co. v. Schroll, 76 Kan. 572, 92 Pac. 596.) Moreover, they correctly state the law. As to the 15th instruction, see Railway Co. v. Clinkenbeard, 72 Kan. 559, 564, 84 Pac. 142; Gilbert v. Railway Co., 91 Kan. 711, 139 Pac. 380, 92 Kan. 281, 140 Pac. 883; Green v. Los Angeles etc. Ry. Co., 143 Cal. 31, 76 Pac. 719.
There is not, in our opinion, any evidence to sustain a judgment for exemplary damages as against the Missouri Pacific Railway Company. The most that can be said is that the company was negligent in not giving signals or warning of the intention to back the train across the street. Notwithstanding the finding of the jury, the evidence seems to be undisputed that a brakeman was near the end of the train and walked over the crossing ahead of it, warning persons near by of the approach of the train. The jury were correctly charged that the employees of the freight train had the right to assume that the motorman would bring the car to a full stop at least ten feet and not more than twenty feet before reaching the railroad tracks, and that the employees in charge of the freight train were only required to exercise reasonable and ordinary care to avoid injury to others. (Gilbert v. Railway Co., supra.)
There is some contention that the brakeman should have looked and given a warning to the motorman when he heard the street car bumping over the mill track, but it must be remembered that the mill track is ninety-eight feet south of the track where the passenger train stood, and the brakeman was justified in assuming that the motorman, after running his car up in front of the main track, would make the stop required by law.. The street car, the jury find, was traveling from three to five miles an hour. The freight train was a long one and was traveling at from two to three miles ah hour.
The Missouri Pacific Railway Company contends that material error was committed in the admission of evidence. Without any allegation in the petition that the Missouri Pacific was negligent because of any act of the engineer of the passenger train, the plaintiff was permitted to testify that the engineer, who stood beside his engine, oiling it, gave a signal to the motorman to come on. While the evidence should not have been admitted, we can not say that it was prejudicial to the Missouri Pacific Railway Company, for the reason that .the special findings show that the jury disregarded it. They made no finding of any negligence based upon this evidence.
The findings we have quoted, and the evidence, are abundantly sufficient to sustain the judgment for exemplary damages as against the street railway company. The plaintiff and other witnesses testified that the motorman never looked to the west after the approach near the main track. His attention seems to have been directed almost wholly to the engine of the passenger train. There was no conductor on the street car, and the motorman had only three weeks’ experience.
Of course, mere negligence is not sufficient, but the evidence here shows such a reckless disregard of consequences, such an indifference to natural and probable consequences as to amount to wantonness and to justify • an allowance against the street railway company of exemplary damages. We think that the petition charged wantonness and recklessness on the part of the motorman sufficient to sustain the judgment. We are unable to see any inconsistency in the findings of which the street railway company can take any advantage. While the jury find that ordinary care on the part of the Missouri Pacific Railway Company would have prevented the plaintiff from being injured, finding No. 47, in substance, is that if the street car had been stopped in compliance with law, and the motorman had used due care in the subsequent operation of his car, the collision would not have occurred, and that this was the proximate cause of the injury, combined with the negligence of the Missouri Pacific railway.
There was no error in the trial court’s refusal to submit to the jury special findings'Nos. 1, 2 and 3, requested by the street railway company. Findings Nos. 51 and 52, which were submitted and answered, are to the effect that the freight train was not standing still when the street car started across the tracks, and that the freight train did not start to back over the street after the street car had started across the tracks. It was not necessary for the court to require the jury to answer the same question on behalf of the street railway company, if it was submitted and answered by the jury at the request of the other company. The street railway company is allowed the advantage of the finding upon the same question, though submitted by its codefendant. We have examined each of the instructions requested by the street railway company and find no error in the refusal to submit them.
The first instruction requested was misleading in referring to “the tracks of its codefendant.” The jury might have found that the freight train was not in motion when the street car started across the mill track, which was more than a hundred feet from the point of collision, but no negligence was charged against the street-car company by reason of its crossing the mill track or continuing to run its car until it came to the main track, and besides, there was no evidence to warrant the finding that the freight train backed suddenly. The evidence and findings both show that it was moving at the speed of from two to three miles an hour.
The second instruction does not correctly state the law. The plaintiff was a passenger of the street railway company, and it owed to her the highest degree of care. It could not relieve itself from its gross negligence in failing to stop its car before crossing the railway tracks on the ground that its codefendant was guilty of negligence. We find no error committed against the street railway company, and the judgment as to it will be affirmed.
The judgment against the Missouri Pacific Railway Company will be affirmed in part and reversed in part; no exemplary damages to be awarded as against it.
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