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The opinion of the court was delivered by
Porter, J.;
The district court sustained the plaintiffs demurrer to two causes of action set up by defendants in their answer and cross-petition. The defendants elected to stand upon the demurrer and have brought the case here for review.
The cross-petition, hereinafter referred to as the answer, alleged three causes of action upon a written contract entered into in April, 1912, between the defendants and The Gas Traction Company, a corporation, of Minnesota. The answer set forth that a short time after the contract was executed the plaintiff, an Illinois corporation, purchased all the assets of The Gas Traction Company, including the written contract which was assigned and transferred to it. It further alleged that The Gas Traction Company had been engaged in manufacturing a gas traction engine known as “Big Four 30,” and that the contract provided that the defendants should become the exclusive agents for the sale of this engine throughout the state of Kansas, and should canvass the state and consistently advertise the engine; that in pursuance thereof the defendants did advertise largely throughout the state and bring to the attention of farmers, ranchmen and others the gas traction engine, attending county and state fairs during the year 1912, and distributing a large amount of literature advertising the advantages of the engine, and demonstrating the same in the field by doing a large amount of plowing and road grading at various mentioned places in the state; that as a result of these efforts several of the engines were sold in the state, and that the defendants, in connection with the advertising, demonstrating and conduct of the business of selling and preparing to sell engines, expended $2500. It was then alleged that the plaintiff, after having acquired the contract, violated its terms, and without any justification entered the state and sold engines, and appointed other agents to represent it, and prohibited the defendants from making further sales in the state; that these acts were done without the consent of the defendants and contrary to the provisions of the contract. Upon this cause of action the defendants sought to recover the amount expended by them as aforesaid in the sum of $2500.
In the second cause of action-the defendants made substantially the same allegations as in the first, and asked damages in the sum of $2500 for the value of their services in advertising and demonstrating the advantages of the “Big Four 30.”
The court overruled'the demurrer to the third cause of action, which alleged that the plaintiff had entered the state and sold six engines to customers of the defendants, and that it was orally agreed at the time the written contract was entered into that defendants should buy the engines for $2400 and sell them for not less than $2800. In this cause of action the defendants asked judgment for $2400. We refer to it here because the defendants seem to place some reliance upon the case of Sparks v. Motor Co., 85 Kan. 29, 116 Pac. 363, in which it was held:
“The measure of damages for breach of a contract giving the plaintiff the exclusive agency for the sale of automobiles where the manufacturer invades the plaintiff's territory is the amount of commissions or discounts of which the plaintiff is deprived by sales made by the defendant.” (Syl. ¶ 1.)
Inasmuch as the trial court overruled the demurrer to the cause of action for losses of profits, we do not understand how the defendants can rely upon that decision. It furnishes no support to the contention that the court erred in sustaining the demurrer as to the other two for expenses and for the value of services.
A copy of the written contract was attached to and made a part of each of the causes of action set out in the answer. The contract itself is not so broad in its terms as the defendants allege in their answer. It contains no provision which, in terms, requires the defendants to advertise the engine. It appoints them distributors for the “Big Four 30,” “under the limitations and conditions herein specified, in the state of Kansas, for a period of one year beginning April 1, 1912, and ending March 31, 1913, unless previously-terminated as hereinafter provided.”
It provides that the distributors agree to thoroughly canvass the state “during the life of this contract and exercise their best efforts and skill to effect as many sales of said engines therein as possible.”
“The distributors agree to buy -from the Company, and the Company agrees to sell and deliver to the distributors on board cars at its factory in Minneapolis, Minnesota, as many of said ‘Big Four 30’ gasoline traction engines as the distributors are able to re-sell or may order of the Company during the life of this contract, at the prices and upon the terms following: Twenty-four hundred dollars ($2400.00) in cash for each of the first ten engines so ordered by the distributors. . . . For each of the next five engines ordered and purchased by distributors after said ten engines are purchased and paid for during the life of this contract twenty-three hundred dollars ($2300.00) in cash. . . . For each additional engine ordered and purchased in excess of fifteen engines, during the life of this contract twenty-two hundred fifty dollars ($2250.00) in cash.”
There was a provision that the company was to refer all inquiries for its engines from any person within the state to the distributors, who were not to sell or deliver any of the engines purchased by them in any territory other than the state of Kansas, and were not to buy, sell or deal in any other gasoline traction engine reasonably adapted to the same uses. Another provision read:
“It is mutually agreed, that this contract may be terminated at any time either by the Company or distributors, giving thirty days notice in writing to the other of their intention so to do.”
Another clause upon which plaintiff relies reads:
“It is expressly understood, that the distributors are not in any manner authorized or empowered to conduct business in the name of, or for the account of the company, or in its name or upon its behalf, to enter into any contract with third persons, nor in its name to make any promises or representations' with reference to the engines, or any other matter.”
The defendants rely upon the doctrine declared in the case of United States v. Behan, 110 U. S. 338, and contend that under that authority they have a right to recoup against the plaintiff for. expenditures of money and time. The plaintiff contends that the doctrine of that case has no application here. In that case the government stopped the work being done under a contract after a large amount of material and labor had been furnished by the contractor in the revetment of a river bank. The work was done under the requirements and specifications of the government, was permanent construction, and the government received the benefit of the labor and material furnished by the contractor up to the time the work was stopped. The contractor sued for damages for the breach of the contract and was permitted to recover what he had been induced to expend on the faith of the contract, including a fair allowance for his own time and services, and it was further said that he might be permitted to recover for the loss of anticipated profits subject to the rules of law as to the character of profits which may be thus claimed.
It is the contention of the plaintiff that because the life of the contract in the present case was “short at most” and “of very uncertain duration — liable to be terminated at any time by either party upon thirty days’ notice,” the contract left the defendants “free to do those things most likely to produce immediate profits to themselves and entirely free to abstain from doing those things not likely to yield immediate profits to themselves.” And attention is called to the clause of the contract forbidding the defendants to do or perform, in connection with their business, any act on behalf of, for, or as the agents of the plaintiff. The plaintiff would construe the contract to provide merely for the purchase of engines at fixed prices upon prescribed terms of payment, and insists that the proper construction of the contract is that the plaintiff “bound itself only to sell and furnish engines during the life of the contract at agreed prices and to abstain from making sales directly or indirectly in the state.”
It is argued that the statement in the answer that the plaintiff “prohibited these defendants from making further sales of said engine in the State of Kansas” is a mere “conclusion of law and wrong at that, for appellee could not as a matter of law prohibit appellants from selling in Kansas. Contract or no contract, they could sell their own property.”
It is the opinion of the majority of the court that it was error to sustain the demurrer to the first cause of action, and that the terms of the contract as fairly construed contemplated that defendants should go to more or less expense in advertising and bringing to the attention .of the public throughout the state the merits of the traction engine, and likewise by demonstrating it at county fairs and in plowing fields and in grading roads; and that the defendants are entitled to recover upon that cause of action whatever they may be able to show was reasonably expended for those purposes; further, that the trial court properly sustained the demurrer to the cause of action for the value of the defendants’ services.
The judgment will be reversed and the cause remanded for further proceedings in accordance herewith.
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The opinion- of the court was delivered by
Mason, J.:
The Kansas City Stock Yards Company, a corporation organized under the laws of Missouri, operates stock yards situated in part in Kansas, having been authorized to do so by the charter board of this state. The company owns, or controls as lessee, tracks leading to the stock yards, which are used by various railroads in delivering live stock thereto. For the use of these tracks the stock yards company exacts a charge which it requires the railroad companies to pay. The state contends that in virtue of these transactions the stock yards company is engaging in the business of transportation as a common carrier, without having the legal right to do so, and this action is brought on the relation of the attorney-general to oust the company from the exercise of that function. The plaintiff asks for judgment upon the pleadings, and in case that is not granted, for an order restraining the acts complained of during the pendency of the action.
For many years the switching tracks were owned by the stock yards company and were operated substantially as at present, without a charge being made to the railroad companies for their use. In May, 1913, persons interested in the stock yards company procured a charter for a Kansas corporation under the name of The Kansas City Connecting Railway Company, to which the title to the tracks in question was transferred, but the state utilities commission denied its application for authority to commence business. The tracks were then leased to the stock yards company, which filed a tariff with the interstate commerce commission, providing a charge of seventy-five cents per car for their use.
The stock yards company seems clearly to be engaged in the business of transportation, so far as to make it subject to regulations applicable to common carriers. (United States v. Union Stock Yard, 226 U. S. 286; Tap Line Cases, 234 U. S. 1.) In the cases cited some effect was given to the circumstance that the corporations in question had been granted specific authority to operate as common carriers, but that was not the controlling consideration. Here the filing of the tariff with the interstate commerce commission goes far to characterize the business undertaken. If a right to do business as a carrier resulted by implication from the express grant of authority to engage in another business to which it was incidental, doubtless such implied- right would have to be exercised in conformity to traffic regulations the same as though it were specifically mentioned in the charter. Here, however, we think the powers incidental to those expressly granted to the defendant company did not include the character of business now under consideration. In its Missouri charter its purposes are thus described:
“The purchase, construction, maintenance and operation of a general Union Stock Yards, with the necessary inclosures, buildings, hotels, exchanges, structures, railroad tracks, switches, bridges and viaducts for the reception, inspection, safe-keeping, feeding, watering, weighing, delivering, transferring and caring for live-stock.”
In the application of the company for leave to operate in Kansas, which was granted by the charter board of this state, the business in which it proposed to engage was described as “the maintenance and operation of stock yards.” The authority thus granted would doubtless include the right to use railroad tracks and terminal facilities as an incident to the receiving and handling of live stock, but we can not regard it as authorizing the exaction of a charge for the use of its tracks in transporting cattle from the railroads to the stock yards, that being distinctly the function of a carrier.
The defendant maintains that if it actually is engaged in a business which is beyond its corporate power, the court, having a discretion in the matter, ought not to interfere, because to do so would be inequitable, and would result ■ in grave inconvenience and loss to the public, while no injury results to the state from the exaction of the charges referred to. It argues that no one but the railroad companies is affected by the charges, and that as they employ the defendant’s track in making delivery of stock to the yards they ought in fairness and justice to pay for the privilege; that the defendant can not be required to allow the use of the track without compensation, and if its use is denied live stock destined for the yards will have to be driven on foot to reach them, entailing great loss upon shippers. We believe, however, that where a corporation is engaged in a business not authorized by the law, and the state by the proper executive officer makes objection, the court has no alternative, but must decree its discontinuance. To invoke such relief the state need not show any particular detriment to the public. “It has an interest in seeing that the will of the legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury.” (The State v. Lawrence, 80 Kan. 707, 108 Pac. 839.)
The defendant pleads that all business done over the tracks referred to is interstate commerce, but this broad averment is limited by these specific statements:
“That a train of live stock arriving at the terminal facilities of this defendant will be composed of say forty cars of live stock that is interstate, and mingled therewith there may be four or five cars that are intrastate ; that this defendant will have no knowledge of the origin of said cars until they are pulled up to the unloading dock, in, over and upon the terminal facilities of the defendant herein.”
The contention is made that this results in such.a mingling of the two classes of shipments that the intrastate must be regarded as incidental to and merged in the interstate. The state of course can not inter fere with the interstate business done by the defendant, but we do not think the allegations quoted exhibit such a confusion of interstate and intrastate shipments as to cause the latter to lose their identity as such or to exempt them from state control. (The Minnesota Rate Cases, 230 U. S. 352.)
The defendant further maintains that the state can not, or at least should not, forbid the collection of a charge for the use of its tracks in connection with intrastate business, because if the company furnishes for local shipments, without compensation, the same facilities for which payment is exacted if the commerce is interstate, the result is an unlawful discrimination— a violation of the federal statute which forbids a carrier to give undue or unreasonable advantage to any particular description of traffic. (24 U. S. Stat. at Large, ch. 104, § 8, p. 380, 3 U. S. Compiled Statutes, 1901, title 56A, ch. 1, § 3, p. 3155, 4 U. S. Compiled Statutes, 19Í3, § 8565; Houston & Texas Ry. v. United States, 234 U. S. 342.) And the defendant represents that on this account if an order is made preventing the making of a charge to local shippers it will be compelled to deny to them the use of its facilities, thereby necessitating the driving of live stock from the railroads to the stock yards. The fact, however, that a corporation is engaged in interstate commerce can not authorize it to exercise the functions of a common carrier in purely local business without the permission of the state. The courts can not grant that permission, and until it is granted by the proper authority they must, upon due application, forbid the doing of acts which without it are illegal.
We conclude that upon the pleadings the plaintiff is entitled to a decree ousting the defendant from the exercise of the function of engaging in intrastate business as a common carrier.
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The opinion of the court was delivered by
Porter, J.:
This is an action to foreclose a mortgage. The plaintiff formerly owned the property which consists of a hotel at Garfield, and he traded it to a man by the name of Mason for a farm in Missouri. Mason and wife gave him a mortgage on the hotel property to secure a note for $1000, and on the same day that the mortgage was executed they conveyed the property to defendant William Dieball, the deed reciting that the conveyance was subject to a “first mortgage for $1000 dated today and due in two years from date, in favor of John Wilhite, drawing 6 per cent and payable semi-annually.” There was a provision in the mortgage that if any interest on the note was not paid when due, “and if the taxes and assessments” were not paid when due, then the whole principal and interest thereon should become due. The petition alleged that the interest due on March 9, 1913, had not been paid, and also that the taxes were in default, and asked for the foreclosure of the mortgage and for a sale of the property to satisfy the lien.
Dieball filed a verified answer, consisting of a general denial and an admission that he was the owner in possession of the property, and further alleged that neither the note nor the mortgage sued on was in existence at the time of the delivery of his deed, but were executed long after he had received the conveyance from Mason and wife. The case was tried to the court, and over the defendants’ objections the court ruled that the burden of proof was upon the defendants, and this presents practically the only question involved in the appeal. After this ruling as to the burden of proof, the defendants introduced some testimony, which, however, the court gave defendants leave to withdraw from the record; and the case was submitted upon the pleadings and the ruling as to the burden of proof. The court found the issues for the plaintiff, and rendered a decree foreclosing the mortgage.
Attached to the petition and made a part thereof is “Exhibit A,” purporting to be a copy of the note sued upon. It reads as follows:
“$1,000.00. Sept. 9th, 1912.
“June 1st, 1914, after date we promise to pay to the order of John Wilhite, One Thousand ($1,000) Dollars. For value received negotiable and payable without defalcation or discount and with interest from date at the rate of 6 per cent per annum, and if the interest be not paid semi-annually to become as principal and bear the same rate of interest.
(Signed) John M. Mason,
Angbnette Mason.”
A copy of the mortgage was likewise made a part of the petition, and it purports to set out a copy of the note which the mortgage was given to secure, and which reads as follows:
“$1,000. Columbus, Ks., Sept. 9th, 1912.
“June 1st, 1914, we promise to pay John Wilhite One 'Thousand Dollars with interest at the rate of six per cent from date, payable semi-annually.
(Signed) John M. Mason,
Angenette Mason.”
The original note and the original mortgage which were filed for cancellation at the time judgment was rendered are before us, and the copy of the note in the mortgage shows an erasure and alteration. The words “June 1st, 1914,” are written over an erasure and by a different typewriter and different ribbon from the other portions of the note. The original note also shows an erasure, the body of the note having been written with pen and ink, and the time when the note was due has been erased and the words “June 1st, 1914,” written therein with an indelible pencil.
In Threshing Machine Co. v. Peterson, 51 Kan. 713, 33 Pac. 470, it was held that in a suit upon a promissory note, a copy of which was set out in the petition showing a specified rate of interest, an answer consisting of a verified general denial casts the burden of proof upon the plaintiff, and further that under a verified general denial it is proper to introduce proof to show an alteration of the note.
The answer in the present case consists of a general denial and language which must be construed as an admission of the execution of the note and mortgage, but denying that they were in existence at the time the defendants purchased the property.
But whether or not the answer should be technically construed as a general denial of the execution of the particular note and mortgage, we think the burden of proof upon the pleadings rested upon the plaintiff. When the case was called for trial the plaintiff was hardly in a situation to stand upon any technical rule as to the burden of proof. His petition asked for the foreclosure of a mortgage given to secure a certain note, a copy of which was made a part of the petition. Also as part of the petition there was attached a copy of the mortgage which recites an entirely different note. There is no similarity in the two instruments except as to amount and dates. One is a negotiable promissory notethe other is honnegotiable. Besides, plaintiff in his petition further alleged that the defendants had accepted a conveyance of the property subject to this mortgage. The answer set up a copy of the deed conr veying the property to the defendants, which recited that the conveyance was subject to a note differing in terms from either of the notes referred to in the petition.
Without asking the court to reform the instruments, or attempting to offer some explanation of the inconsistent recitals of the petition, the plaintiff saw fit to stand upon his pleading and to insist that the defendants had the burden of proof upon the question whether the note sued on was the same one mentioned in the deed of conveyance. He offered no proof; but the original note and mortgage which were filed for cancellation show on their face erasures and alterations. Under what circumstances and by what authority these were made was not shown.
The court had overruled a motion to make the petition more definite and certain by requiring the plaintiff to state whether he was seeking to hold the defendants on a mortgage given to secure the indebtedness re ferred to in “Exhibit A” or that referred to in “Exhibit B.” In this situation of the pleadings the plaintiff should have been willing to have assumed the burden; and we think it was error to cast it upon the defendants.
In Stewart v. Balderston, 10 Kan. 131, referring to a case where proper motions had been made to require a defective pleading to be made definite and certain, it was said in the opinion:
“And where the adverse party then refuses to amend his defective pleading, resists the motions to have it amended, and has the motions overruled by the court, the most rigid rule of the common law should prevail. No statement of fact in the pleading, which the motions reached, should then be taken as true unless well pleaded; and if any such statement would bear different constructions, the party demurring should be allowed to adopt any one of such constructions which he should choose. . . . After a party has received full notice that his pleading is defective in some particular, and has been asked to correct it, it is his fault if it still remains defective in such particular, and he is the one who should suffer on account of such defective pleading, and not the other party.” (p. 149.)
On the other hand, it is quite clear that, as between themselves, the maker and payee could alter the terms of the note and mortgage to suit their pleasure; and as against the defendant, who purchased the real estate subject to the mortgage, they could likewise alter the terms and conditions of the note and mortgage, provided such alterations did not prejudice the rights of the defendant. Upon his own theory he purchased subject to a mortgage given to secure a note for $1000, due two years from date, but with a provision in the mortgage for the accelération of the maturity of the debt if the interest and taxes were not paid when they became due, and, if there was no default in payment of the interest and taxes, the plaintiff could not maintain an action to foreclose as to him until two years from the date the note was executed. However, it is our opinion that in the state of the pleadings the plaintiff was required to offer proof, and that it was error to place the burden of proof on the defendant.
The judgment will be reversed, and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Johnston, C. J.:
George Burdett brought this action against Joseph Surdez to recover possession of a team of mules. In his petition he alleged, substantially, that on or about May 20, 1912, C. C. Robbins executed and delivered to him a promissory note whereby Rob bins promised to pay to him or his order $400; that as security for the payment of the note Robbins gave a chattel mortgage bn certain property, including the mules in question, providing, among other things, that should Robbins attempt to sell or dispose of the property he should become entitled to its immediate possession ; and that the note is wholly unpaid except for the sum of $50. Plaintiff further alleged that Robbins had attempted to sell the property to defendant, Joseph Surdez, and he therefore asked for the possession of the mules and $50 damages for their unlawful detention and costs of this action. Joseph Surdez answered and by way of cross-petition alleged that on or about October 9, 1912, he sold a team of mules to Eugene Van Buskirk as agent of the Edgetown Livestock Company, a copartnership composed of William J., Harry and Frank Kaul, and- accepted the check of the company for $350 in payment; that the mules were sold to Van Buskirk after Van Buskirk had examined them, particularly the eyes of one of them which Surdez claims he told Van Buskirk were affected with some kind of fever, who then expressed satisfaction with them; that on the same day he purchased of Robbins the team of mules involved herein and gave in payment therefor -the check of the Edgetown Livestock Company; that Robbins sold the mules to him after plaintiff had been consulted and had approved the check given and accepted in payment; and that later Robbins had given to the plaintiff and he had accepted the check in satisfaction of the amount remaining due on the note and mortgage. Surdez further alleged that about two days later plaintiff endeavored to collect on the check and it was protested and not paid, the company giving as a reason that one of the mules purchased from Surdez was blind; and also that plaintiff was induced by the Edgetown Livestock Company to commence this action to accomplish a purpose of its own, that the company was paying the expense of the litigation and was the real party in interest. Surdez therefore asked that the livestock company and Van Buskirk be made parties to the action. Plaintiff later amended his petition to include the additional parties, and they were personally summoned. The Edgetown Livestock Company moved to set aside the summons but was overruled, and neither the company nor Van Buskirk made further appearance in the action. On the trial the jury found in favor of Surdez, and, overruling plaintiff’s motion for a new trial, judgment was accordingly given. Burdett appeals.
Complaint is'made of instructions that were given and of the refusal of some that were requested. It is insisted that the jury should have been instructed that under the evidence and the law the plaintiff was entitled to the possession of the mules. The principal question in the case is whether the plaintiff accepted the $350 check in part payment of the note and mortgage lien he held on the Robbins’ mules, the possession of which is in controversy here. There is testimony to the effect that plaintiff declared the check to be good and expressly agreed to and did accept it in payment of the note and mortgage he held against the mules. Not only that, but when the balance of the note was paid by Robbins to the plaintiff, which occurred within a few days after the salé to defendant, Robbins turned the check over to the plaintiff and he turned the note over to Robbins as paid and discharged. In response to an inquiry, plaintiff stated that he held no mortgage on the mules. There is sufficient testimony to support the finding that full payment was made of the note, and that the mortgage was satisfied and discharged.
The plaintiff complains of an instruction which referred to the subject of fraud when he insists there was no such issue raised by the answer of 'the defendant. In the answer it is alleged, in substance, that plaintiff was not a real party in the action, but that the Edge-town company was the real party, that the company had procured the plaintiff to begin the action in his name in order to protect the company and to further its purpose, that the company was paying the expense of the litigation, and that the pláintiff and the company had thus connived together to defraud the defendant, Surdez. Under the code, except in certain enumerated cases, an action must be brought by the real party in interest. (Civ. Code, § 25.) If the plaintiff is not a real party under this provision or within any of the exceptions and is wrongfully prosecuting an action against the defendant at the instance of the company, which is to pay all the expense of the litigation and is to have the mules in case the plaintiff should succeed, as some of the testimony tends to show, it would constitute a fraud on the defendant. There was a sufficient basis in the pleadings and evidence for an instruction on the subject of fraud. However, the court, in two of the instructions about which complaint is made, advised the jury that to recover the defendant must not only show that the action was brought in bad faith and to aid the company in defrauding the defendant, but must also prove that the note and mortgage had been paid in full and that the mortgage lien on the mules had been discharged. In one of the instructions it was stated that if either were established by the evidence the defendant might recover. Although the defendant claimed that the plaintiff had brought the action to aid the company in defrauding him, and although the company was made a party and served with summons, it did not offer any evidence in denial of the charge of bad faith nor did it make any appearance in the case after a preliminary motion which it made had been overruled. It is argued that there could have been no fraud in the plaintiff conniving with the company or with any one else to make the defendant pay his obligations, and, further, that he could not be defrauded by bringing an action to recover the mules if the lien upon them had not been discharged. The instruction in question did not proceed on the theory that it is a fraud to connive with others in order to make a party pay a valid obligation, but the fraud referred to is in the plaintiff prosecuting an action to obtain a judgment when he had no basis for a judgment and no cause of action against the defendant. It is not a case of a party having a cause of action entering into an illegal contract as to the manner in which it shall be instituted or maintained, but it is one where the plaintiff has no right of action and is wrongfully allowing another to use his name in order to accomplish a fraud as against the defendant. No one should be permitted to use the machinery of the law to accomplish a fraud or defeat the spirit and purpose of the code. As said in McConnell v. Hicks, 64 Kan. 828, 68 Pac. 651:
“It is also the policy of the law to discountenahce fictitious litigation and compel the prosecution of every action by the real party in interest.” (p. 832.)
The issues in the case appear to have been fairly presented to the jury, and nothing substantial is found in the objections to rulings on requested instructions. On the matter of the check the court instructed the jury that:
“The mere taking of a bank check for a debt is not a payment of the debt until cashed, nor is it an ex-tinguishment of the obligation for which it was given, unless it is taken and accepted under an agreement between the parties that it is to be in full satisfaction of such debt, regardless of whether the check is after-wards paid or not.”
There was testimony which tended to support and which justified the jury in finding that the check was accepted as payment within the meaning of this rule.
No material error is found in the record and therefore the judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover on a promissory note. Judgment was rendered in favor of the plaintiff. The defendants appeal.
The defendants, Wm. S. Burdick and A. M. Ewing, in consideration for a tract of land in Mercer county, Missouri, gave a stock of goods in Iola, Kan., a negotiable promissory note for the sum of $500, signed by all the defendants, and assumed an encumbrance on the land for the sum of $890. The trade was made with, and the note given to, J. A. Wheeler, who negotiated the note to the plaintiff by writing on the back thereof: “I Hear By assine this note over to E. H. Farnsworth this the Nov. 1st, 1910,” signed it, and delivered it to the plaintiff. The plaintiff became the holder of the note before it was due, without any notice that it had been previously dishonored. He took it in good faith, and for value. At the time it was negotiated to him he had no notice of any infirmity in the note or defect in the title of J. A. Wheeler. The note is complete and regular on its face. The defense is, failure of consideration for the note. Is this defense good?
Prior to the passage of the negotiable instruments law (Gen. Stat. 1909, §§ 5247-5446), this court, in Hatch v. Barrett, 34 Kan. 223, 8 Pac. 129, said:
“A writing upon the back of a promissory note, transferred before maturity, in these words: ‘State of Arkansas, County of Washington, ss.: I, James C. Rogers, do hereby assign the within note to Charles B. Hatch, of Osage county, Kansas. Said assignment is made without recourse on me, either in law or equity. —J. C. Rogers. Signed in the presence of H. F. Raymond, clerk county court, Washington county, Arkansas,’ is not an indorsement in a commercial sense, and will not cut off the defenses of the maker.” (Syl.)
This principle was followed in McCrnm v. Corby,. 11 Kan. 464; Hadden v. Rodkey, 17 Kan. 429; and Briggs v. Latham, 36 Kan. 205, 13 Pac. 393. At the time these decisions were rendered, the weight of authority in this country was that such a writing on the back of a note was an indorsement which cut off the equities and defenses of the maker available against the payee.
The negotiable-instruments law reduces to a certainty many things that prior to that date were in confusion. This law contains several definitions. One is, that “ ‘delivery’ means transfer of possession, actual or constructive, from one person to another.” Another is, “ ‘holder’ means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.” Still another is, “ ‘indorsement’ means an indorsement completed by delivery.” (Gen. Stat. 1909, § 5248.)
Section 5283 reads in part:
“An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof.”
The note sued on was negotiated within, the meaning-of this section. It was transferred from Wheeler to Farnsworth, and he became the holder thereof.
Section 5284 reads:
“The indorsement must be written on the instrument itself or upon a paper attached thereto. The signature of the indorser, without additional words, is a sufficient indorsement.”
This indorsement, if it is an indorsement, was written on the note itself.
Other sections of the statute are' as follows:
“An.indorsement may be either special or in blank; and it may also be either restrictive or qualified, or conditional.
“A special indorsement specifies the person to whom •or to whose' order the instrument is to be payable; and the indorsement of such indorsee is necessary to the further negotiation of the instrument. An indorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer, and may be negotiated by delivery.
“An indorsement is restrictive which either: (1) Prohibits the further negotiation of the instrument; or (2) constitutes the indorsee the agent of the indorser; •or (3) vests the title in the indorsee in trust for or to the use of some other person; but the mere absence of words implying power to negotiate does not make .an indorsement restrictive.
“A restrictive indorsement confers upon the indorsee the right: (1) To receive payment of the instrument; (2) to bring any action thereon that the indorser could bring; (3) to transfer his rights as such indorsee, where the form of the indorsement authorizes him to do so; but all subsequent indorsees acquire only the title of the first indorsee under the restrictive indorsement. ,
“A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser’s signature the words ‘without recourse,’ or any words of similar import. Such an. indorsement does not impair the negotiable character of the instrument.” (Gen. Stat. 1909, §§ 5286, 5287, 5289-5291.)
The indorsement in this case is special, in that it specifies the person to whom the note is made payable. It is absolute and unrestrictive. It is not a qualified indorsement, unless the use of the word “assign” makes it a qualified indorsement. It is not a conditional in-dorsement.
Section 5305 reads:
“A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith .and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
Section 5810 reads:
“A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment or [of] the instrument for the full amount thereof against all parties liable thereon.”
If this note is complete and regular upon its face, if Farnsworth became the holder of it before it was overdue and without notice that it had been dishonored (there is no evidence to show that it was dishonored), if he took it in good faith and for value, if at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of J. A. Wheeler, then he became the holder thereof in due course, and took the note free from any such defect, and free from defenses available to these defendants against J. A. Wheeler, and may enforce payment for the full amount of the note, under the statute.
Section 5316 reads:
“A person placing his signature upon an' instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”
When Wheeler placed his name on this note, he did not do it as maker, drawer, or acceptor, and is therefore deemed, to be an indorser, unless the word “assign,” used by him, indicates “his intention to be bound in some other capacity.” The authorities seem to be in utter and hopeless confusion concerning the effect of the transfer of a negotiable instrument by words like those used here. This confusion existed prior to the passage of the uniform negotiable-instruments law, and still exists. The weight of authority was, and is, that this is a commercial indorsement. We are of the opinon that the “assignment” of this note is an indorsement thereof under the negotiable-instruments law; that Farnsworth is a holder in due course; and that the makers of the note can not set up the defenses against the note that could have been set up against it in the hands of Wheeler. This disposes of the case and compels an affirmance of the judgment. The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
On September 11, 1906, the plaintiff and defendants entered into a written contract whereby the latter agreed to purchase some land in the Green river valley in the state of Utah, and to incorporate a land or town-site company to develop the property. The contract further provided:
“The party of the second part hereby agrees to purchase Thirty (30) shares of stock bearing a par value of $3,000.00 and to pay Two Thousand Two Hundred and Fifty ($2,250.00) Dollars on or before Jan. 1st, 1907, upon the proper delivery of the stock certificates, the company having been legally organized according to the laws of the state of Utah, and being ready for business.
“The parties of the first part, in consideration of the covenants and agreements of the party of the second part, hereby agree to guarantee said stock in this manner, namely, That they, the said parties of the first part, agree to purchase said thirty (30) shares of stock of the party of the second part four years after the date of the issue of said stock for the sum of Two Thousand Two Hundred and Fifty ($2,250.00) Dollars, with interest thereon at eight per cent (8 per cent) per annum from the time of issue, at the option of the party of the second part.”
The corporation was organized,' and stock sold to plaintiff as per contract. The corporate lands were acquired and an orchardizing project was developed. On December 23, 1910, the plaintiff addressed the defendants as follows:
“Gentlemen :
“It is my desire that you purchase, on the 23rd day of January, 1911, 30 shares of stock of the Green River Fruit & Land Company for the sum of $2,250.00 with interest for four years at 8 per cent per annum, amounting to $720.00 according to the terms of a certain contract dated the 11th day of September, 1906, between J. Moncrief, W. A. Cook and D. D. Potter of the first part and A. M. Echternach of the second part. By the terms of this contract you have agreed to purchase this stock four years after its issue if I desired to sell.
“Very truly yours,
“A. M. Echternach.”
About the date when defendants were bound to repurchase plaintiff’s stock, January 23, 1911, they requested that they be given until April 1, 1911, to comply with their contract. About the latter date, plaintiff made another demand for compliance and tendered the stock to defendant Moncrief, one of the parties to the written contract. On April 1, 1911, defendants failed to comply with their contract, but the record shows that at various intervals during that year and extending into the early months of 1912, an extensive correspondence was carried on between the parties and their counsel, the gist of which was to urge plaintiff’s forbearance and patience; and, in one instance at least, on November 20, 1911, counsel for defendants suggested to plaintiff what his legal remedy would be, and said: “I don’t see anything to do but be patient. They are as anxious to clean up as you are. They are doing all they can. Give them what time they have to have.” Various interviews between plaintiff and some of the defendants were to the same effect. Defendants kept plaintiff advised of their various projected deals by which they hoped to be able to take up his stock, and this induced plaintiff to wait. On February 29,1912, plaintiff turned over the matter to his attorney, and he called upon the defendant Moncrief and requested payment. Mon-crief told him the defendants had certain deals in prospect within the next thirty or sixty days and gave him a detailed outline of the moneys they expected to realize and requested plaintiff’s attorney to wait until May or June.
Action was filed April 18, 1912. The petition alleged and the answer admitted a tender of the stock to defendant Moncrief on April 1, 1912, and the stock was tendered in court. From a judgment in plaintiff’s favor, as per the terms of thé written contract, defendants appeal. . . .
It is urged by appellants that plaintiff’s remedy was for damages measured by' the difference between the agreed price'and the market value of the stock on January 23, 1911, which was the date of default; that no sufficient tender of the stock was made by plaintiff; and that plaintiff could not wait a year, watching the rise and fall of the value of the stock, and then recover upon the original contract according to its terms.
First let us dispose of the question of delay. This delay was occasioned at the urgent and repeated solicitation of defendants and by their representations that with forbearance and patience on the part of plaintiff they would be in a position to comply with their obligation. Has plaintiff altered his situation for the worse by this concession? Equity would presume that the defendants were acting in good faith during the period when they were urging plaintiff to be patient, and that there was a reasonable basis for their hope that they would be able to realize on some of their deals and thus fulfill their obligation. Surely defendants can not be heard to say that these representations were merely to secure a better position for themselves and a worse one for plaintiff. (16 Cyc. 747, 749.) It is urged for defendants that plaintiff should not be permitted to watch the rise and fall of his stock for a whole year and, when the failure of the corporate project was obvious, to hold them to their original agreement. That contention would be good but for the fact that plaintiff’s delay in bringing his action was not occasioned through any such purpose. He did not concern himself about the market value of his shares. It is doubtful if they ever had any market value. Nor does the record show that plaintiff ever varied from his position to hold defendants to their contract. It is true that he looked into some propositions whereby he might be able to dispose of his stock elsewhere to relieve the defendants, and at one time he asked for some data concerning the status of the corporation. This was to obtain credit for himself because of his forbearance toward defendants.
It is fundamental that a person is not prejudiced in pais from relying on the representations of another against whom he has a legal claim. (Palmer v. Meiners, 17 Kan. 478, 488; Hubbell v. South Hutchinson, 64 Kan. 645, 68 Pac. 52.)
Next, as to the measure of damages. We think that matter was concluded between the parties in their original contract. Nor is it necessary to indulge in refinements as to whether this was an executory or executed contract. Part of the contract was executed when plaintiff paid his money and received his shares of stock. A further consideration for his money was defendant’s promise to buy back the shares at the same price plus eight per cent interest on January 23, 1911, if plaintiff desired to resell. Counsel for appellants say: “It is a game at which he can not lose, and the defendants have no chance to win.” But the defendants made their own bargain, and it was not a contract against public policy; nor is it easy to discern why it should not be enforced according to its terms. (36 Cyc. 625.) Why should plaintiff be called upon to find a market to sell his shares, and assume the burden of justifying the fairness and diligence of the sale, and be limited in his recovery to the difference between that selling price and the face of his contract? If the delay was occasioned by .plaintiff’s fault, and not through forbearance induced by defendants, that rule might be proper; but even in such a case the existence of a market and a market value of his shares would have to be presumed.
In Campbell v. Woods, 122 Mo. App. 719, 99 S. W. 468, it was said:
“W agreed to take from C at a certain time certain stocks at an agreed price. At the time C tendered the stock and demanded the price, W refused to accept the stock or pay the price, Held, the measure of damages was the contract price and not the difference between the market value and the contract price.” (Syl.)
In the opinion it was said:
“It is true that the rule amounts, practically, to specific performance of contracts. But that is no argument against its utility or propriety, but, on the contrary, the best of reasons for its enforcement. The nearer the rules of law can be made to conform to those of equity, the more effective and just will be the judgments of the courts. Can there be any good reason assigned why the plaintiff’s damages should not be assessed at the value fixed by the contract? He comes into court with the capital stock and tenders it to the vendee and asks for the purchase price — no more, no less. His demand is refused by the vendee on the ground that the weight of authority gives him only the difference between the contract price and what it would sell for on the market. Should he accept such as the law, he must go upon the market and sell the stock, and then sue for the difference. After the trouble and expense of selling the property, it devolves upon him to show, not what he realized on the resale, but what was the reasonable market value of the property, which a jury might conclude was more than what he in fact realized. And, as said in Crown Vinegar & Spice Co. v. Wehrs, 59 Mo. App. 493, the rule also protects the vendee in all his rights under the contract. It is safe to say that,, where a vendor is so situated that he is in a condition to fully comply with his contract by a tender to the vendee of the property sold and does so, and demands thé purchase price, the contract may be said to have been executed, and he is entitled to recover the contract price of the property, upon the refusal of the vendee to accept and pay for the same. And such is this case.” (p. 725.)
Helliwell on Stock and Stockholders states both sides’ of the rule:
“As indicated heretofore, although specific performance of a contract of purchase and sale of shares will not, in certain cases, be decreed, an action for damages may nevertheless lie against the party failing to' perform his' part of the contract. When the failure to perform is’on the part of the vendor, the measure of damages will be the difference between the contract price and the market price of the stock at the time and place of delivery.When the failure, to perform is on the part of the vendee, the vendor may sell, and hold the Vendee for the difference between the amount’ received and the contract price; or, if he elect not to sell, he may recover from the vendee the dif-férence between the contract price and the market value at the time when the stock was to be delivered and the demand was made. It has been held, also, that where the vendee refuses to accept the Stock and pay therefor upon proper tender, the amount of the damages may be'the entire contract price.” (§189.)
A question is raised as to the sufficiency of the tender. A tender- may be implied, or it may be -waived. A tender might fairly be implied in plaintiff’s original communication to defendants announcing his election to sell his shares. It is not even intimated that the shares would not be forthcoming on payment therefor. A tender was made near the close of the first extension of time sought and obtained by defendants. Tenders sufficient were made at other times, including that made by bringing the shares into court.
In Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L. R. A., n. s., 807, it was said:
“There may be an executed contract, passing title, without delivery of possession, as in the case of the retention of a seller’s lien. There, a count’ for goods sold and delivered could not be maintained, but one for goods bargained and sold could be, for the contract is complete and the seller entitled to recover the price, although the goods have not been delivered. It is an executed contract. Buskirk Bros. v. Peck, 57 W. Va. 360. See, also, Simmons v. Swift, 5 B. & C. 857; Rhode v. Thwaite, 6 B. & C. 388; Atkinson v. Bell, 8 B. & C. 277.” (p. 257.)
(See, also, Grant v. Pendery, 15 Kan. 236; Piazzek v. Harman, 79 Kan. 855, 98 Pac. 771; 35 Cyc. 531.)
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Caroline Glenn brought this action against the St. Louis & San Francisco Railroad Company, The Kansas City, Clinton & Springfield Railway Company and Henry Hopkins to recover damages for the death of her husband, John Glenn, which she alleged was caused by their negligence. They answered, ' denying generally the allegations in plaintiff’s petition, and charging that the deceased was guilty of contributory negligence. It appears that The St. Louis & San Francisco Railroad Company, spoken of here as the Frisco, is the owner of the railroad tracks, that Hopkins, who was charged with negligence in the killing of Glenn, was a watchman in the employ of that company, and that The Kansas City, Clinton & Springfield Railway Company runs trains over the Frisco tracks, and the agent of the Frisco acts for both companies. A general verdict was returned in favor of the plaintiff and against all of the defendants, in which the damages were fixed at $1500.
On this appeal it is contended that the evidence did not warrant the verdict rendered, and that the court erred in refusing to sustain defendants’ demurrer to plaintiff’s evidence, and in failing to direct a verdict in favor of the defendants. There appears to be evidence which supports the verdict. John Glenn was an employee of a street railway company, and on the day of the accident was engaged in repairing tracks at the Frisco crossing. The evidence of the plaintiff tended to show that on that day the train of The Kansas City, Clinton & Springfield Railway Company approached the crossing at an excessive rate of speed, that no warning of the approach was given by whistle or bell, and that the Frisco watchman, Hopkins, negligently failed to warn Glenn, who was absorbed in his work, of the approach of the train, and that Glenn did not observe that the train was coming until his attention was called to it by a fellow workman a moment before he was struck, and it was then too late to get out of the way of the train which struck and killed him. The testimony of the defendants was contradictory to that offered in behalf of the plaintiff, and was to the effect that the whistle was sounded as the train came towards the crossing; that Hopkins, the watchman, responded to the whistle by giving a signal to the engineer to proceed with the train; that warning was actually given to Glenn by Hopkins, but that he disregarded it ; that he was walking on the outside of the track, and just as the train came upon him he turned in upon the track and was struck by the pilot beam of the engine. If the evidence offered by plaintiff is believed, it is sufficient to support the finding of the jury, while if that of the defendants is accepted as true, the defendants were not negligent, and Glenn was killed through his own want of care. The credibility of the witnesses has been determined and the conflict in the evidence settled by the jury. This court can not weigh the evidence or go farther in its examination than to see that there is evidence to sustain the verdict.
There is a claim that Glenn was guilty of contributory negligence, but that issue, like the one that defendants were negligent, depends upon conflicting testimony. It is said that he knew or should have known of the approach of the train and could, by the exercise of ordinary care, have saved himself. Of course he could have seen the oncoming train, if he had been on the lookout for its approach, but naturally he would expect to receive warning from the watchman who was there to watch and warn. Besides, a different rule applies to one like Glenn, whose duties required his presence on the track, than is applied to a traveler upon a highway who is about to cross. Negligence can not be imputed to him as a matter of law for failure to continually look and listen while he is on the' track, but as said in Westine v. Railway Co., 84 Kan. 213, 114 Pac. 219:
“The failure to look and listen in such a case may or may not constitute negligence, according to the circumstances. The employee must exercise such care as the danger of his surroundings would suggest to a man of ordinary prudence and caution.” (p. 220.)
(See, also, Comstock v. U. P. Rly. Co., 56 Kan. 228, 42 Pac. 724; Railway Co. v. Bentley, 78 Kan. 221, 93 Pac. 150; Ray v. Railway Co., 82 Kan. 704, 109 Pac. 172.)
There are some objections to the rulings made in instructing the jury, but the only objection upon which there is argument is that the instructions given were confusing and that there was no evidence upon which to base some of them. The issues appear to have been fairly presented to the jury and there was evidence sufficient to warrant the instructions given. We find nothing substantial in the objections to the rulings on the admission of testimony.
■The judgment is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Josiah Kindt, sheriff of Republic county, against the board of county commissioners of said county, “For extra work in carrying meals to prisoners confined in jail, and otherwise attending to their wants,” during the winter and spring of 1874. The claim of the plaintiff is in fact for extra work in boarding prisoners. The plaintiff had to carry the provisions for the prisoners about fifty rods, and the water about one hundred and sixty rods. The cells of the jail were small, and inconvenient, and required extra work to keep them in good condition; and the weather was cold and disagreeable. Under the circumstances we think the county board might in their discretion have allowed the plaintiff extra compensation for his. extra trouble, but still we do not think that they were bound to do so. The plaintiff cannot claim extra compensation as a matter of right. The commissioners allowed the plaintiff compensation for boarding the prisoners at the rate of sixty cents per day for each prisoner. This is the amount fixed by law, (Gen. Stat. 477, § 3,) and the county board cannot be compelled to pay any more. (Atchison Co. v. Tomlinson, 9 Kas. 167.)
The judgment of the court below must be reversed, and cause remanded with the order that judgment be rendered in favor of the defendant below, and against the plaintiff for costs.
All the Justices concurring.
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The opinion of the court was delivered by
Dawson, J.:
The appellant is a resident taxpayer of Flora township, Dickinson county, Kansas. He brought suit in the district court against the appellees, who are the township board and township'high-school board, to restrain them from establishing a township high school under chapter 278 of the Laws of 1913.
The city of Manchester, which contains about two hundred and fifty people, is located in Flora township, and appellant contends that the appellees have no power to establish a high school in that township under the act named above.
A demurrer to the petition was sustained and the case is here for review.
The sole question relates to the proper construction of the first section of chapter 262 of the Laws of 1911 and chapter 278 of the Laws- of 1913. The first of these acts is entitled “An act relating to township high schools.”
Section 1 of that act reads:
“The legal electors of any township in which there is no town or city in the state are hereby authorized, as provided for ,in this act, to establish, locate and maintain a high school in such township.”
It will be observed that in the original statute a township high school was only authorized in townships in which there was no town or city. We may properly assume that in this enactment the legislature was proceeding in good faith to comply with the constitutional mandate imposed upon it to encourage education. (Const, art. 6, § 2.) Until that act was adopted no adequate means for secondary education was provided in townships which did not contain cities. Hence the act of 1911.
But the act of 1911 did not entirely cover this need. If a township contained a city of considerable population, such city would probably have a high school which the children of the township might attend under various statutory regulations. If the township contained only a very small city, one which could not afford the burden of a high school, the children of the township were denied the privileges of secondary education; and in the further pursuit of its constitutional duty, the legislature of 1913 amended the first section of . the act of 1911 to make it read:
“That section 1 of chapter 262 of the Session Laws of 1911, be and the same is hereby amended so as to read as follows: Section 1. The legal electors of any township in which there is no incorporated city of not to exceed 300 population, in the state, are hereby authorized, as provided for in this act, to establish, locate and maintain a high school in such township.” (Laws 1913, ch. 278, § 1.)
There is some awkardness of expression in this statute, but when read in the light of the act of 1911, of which this act is amendatory, its difficulties disappear. We are bound to hold that the legislature was ' dealing seriously with this subject, and that it was enacting a wholesome and desirable provision for the en couragement of schools of the higher grade, and to fill a gap in the state’s educational system.
Sutherland on Statutory Construction, § 260 (2 Lewis’ Sutherland Statutory Construction, 2d ed., § 410), furnishes the proper rule to apply here. In part it reads:
“Legislative enactments are not any more than any other writings to be defeated on account of mistakes, errors or omissions, provided, the intention of the legislature can be collected from the whole statute. . . . Where one word has been erroneously used for another, or a word omitted, and the context affords the means of correction, the proper word will be deemed substituted or supplied. This is but making the strict letter of the statute yield to the obvious intent. So words which are meaningless or inconsistent with the intention otherwise plainly expressed in an act have sometimes been rejected as redundant or surplusage.”
Citing many authorities, including Brook v. Blue Mound, 61 Kan. 184, 59 Pac. 273.
Fairly considered, this statute means that in all townships having no cities or having only cities of three hundred population or less, township high schools may be established.
The judgment is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
Defendant was convicted in the district court of the crime of grand larceny. From that conviction he brings this appeal. Several questions are presented and discussed by counsel for appellant.
I. A plea of autrefois acquit, was made, and it is alleged that the court erred in refusing to submit.the issue tendered thereby to a jury. A demurrer to this plea was first filed by the county-attorney, which was overruled. He then filed a denial of the plea, and upon that issue the court, after refusing to call a jury, heard testimony and decided against the defendant. We think the court should have sustained the demurrer, that the plea, as filed, showed no' case of autrefois acquit, and that therefore there was no question of fact to be submitted to any triers. The plea, after alleging a prior information for the same offense, states:
“And the said defendant further alleges that at the said April Term 1874 of the said district court, * * * the said district court, by its order and judgment, upon the motion of J'. W. Rector, county-attorney for said Washington county, and prosecuting said information in behalf of the said state of Kansas, dismissed and forever discharged the said defendant from prosecution on said charge of feloniously stealing,” etc.
This shows no trial, no impanneling of a jury, no proceeding other than the filing of an information, and a nolle prosequi. It does not appear that the defendant was ever acquitted, was ever in jeopardy. A nolle prosequi, prior to the impanneling of a jury, is no bar to a subsequent prosecution. 1 Archbold Cr. Pr., (Waterman’s Notes,) p. 368, and cases cited; 1 Wharton’s Cr. Law, 7 ed., p. 544, and cases cited in note. So that the court should have sustained the demurrer to the plea; and any subsequent proceedings thereon, even though they were irregular, wrought no prejudice to the substantial rights of the defendant. It may be stated that the testimony subsequently offered on the trial of the plea showed just what the plea alleged, a nolle prosequi, and nothing more.
II. It is claimed that the court erred in admitting the testimony of the prosecuting witness, and of the sheriff, as to admissions made by the defendant. So far as the testimony of the sheriff is concerned, it was admitted without objection, and it is too late now to object that no proper foundation therefor was laid. As respects the testimony of the prosecuting witness, while it appears that the defendant was in custody, that quite a crowd was collected in front of the building where the defendant then was, and that one at least of the crowd was threatening mob violence, it does not appear that any of these threats were heard by the prisoner, and it does appear that no inducements, promises, or threats of any kind whatever were made to defendant, or that anything was done or said to influence him to make the statements he did make. Under these circumstances there was no error in admitting the testimony. The State v. Reddick, 7 Kas. 143.
III. It is insisted that the testimony of one or more of the witnesses who saw defendant in company with another man, shortly after the larceny, in possession of some horses, did not sufficiently identify such horses as the ones that were stolen. But this is an objection going, not to the competency of the testimony, but to its weight, and was a matter for the consideration of the jury. The simple fact, if that was all, that the defendant was seen in possession of horses shortly after the larcény, even without any identification of the animals, was a fact which the court might properly admit in evidence, leaving the effect of it to be considered by the jury under proper instructions.
IV. The remaining objections are to the instructions. Of these, three were given at the instance of the state, two as asked by defendant, and two asked by defendant with some modification, though in what the modification consisted, does not appear. The court, in addition, gave a general charge. Five instructions asked by defendant were refused. The three instructions given at the instance of the state, counsel for appellant claims to be erroneous, but fails to point out any specific error in either. He quotes from Roscoe’s Cr. Evidence, that “The utmost caution should be used in the application of circumstantial evidence,” and also says that “in criminal cases the establishment of a prima facie case only does not take away the presumption of the innocence of the defendant, nor shift the burden of proof.” This is the only specification of error. And, so far as this goes, we see nothing of which defendant can rightfully complain. True, the instruction bearing upon circumstantial evidence is brief, and in general terms, suggesting no need of extra caution, and giving no rules for weighing and determining such evidence. But it is unquestionably correct as far as it goes, and the court afterward, and at the instance of defendant, enlarged upon this matter, and gave all the instructions thereon asked by defendant. In reference to the other suggestion of the learned counsel, while it may be true that in the progress of the trial the onus probandi is not shifting backward and forward, and that the state must upon the whole testimony establish its case, yet if, upon the whole testimony, the state has established a prima facie case, that is, has proven such a state of facts as, unexplained, point to the defendant’s guilt, and no explanations have been made, the jury is warranted in finding a verdict of guilty. The mere presumption of innocence does not overthrow the presumptions from the unexplained facts. We do not think the instructions inconsistent with these views.
The instructions refused were properly refused. Two of them were to the effect that, unless the state had shown the statements of defendant concerning his connection with the property to be false, they must acquit. We do not suppose the court was bound to single out a single matter, such as the truth or falsity of defendant’s statements, and direct the jury as matter of law that the verdict should hinge thereon. The jury were to consider all the testimony, the manner of the larceny, the conduct as well as the statements of defendant, and from them all determine the question of guilt.
A third instruction refused was, that the jury must believe all the statements of defendant, those.in his favor as well as those against him, unless the state had shown by the evidence that the former were false. This would be apt to mislead the jury, and induce the belief that there must be some direct testimony showing the falsity of defendant’s statements, or else that they must be accepted as true. It would be invading the province of the jury, for they are to determine how much credence shall be given to each and all of the statements of defendant. Some may seem to them so improbable that, though there be no direct testimony showing their falsity, they may properly disbelieve them.
The fifth.instruction refused was to the effect that if the proof showed the larceny of a horse, the jury must acquit, inasmuch as the indictment charged the larceny of a gelding. We think there was no error in refusing this instruction in the unqualified condition in which it was asked. Our statute, it is true, specifically mentions “horse, mare, gelding, colt,” etc.; and the indictment charged the larceny of a gelding. But still, in common talk, the terms, “horse” and “gelding” are used interchangeably. The first question asked the prosecuting witness was, “Did you have a bay gelding stolen about the 1st of June 1871?” And the answer was, “I did.” Subsequently he spoke of the animal as a “ horse,” as did the other witnesses. Now it seems to us, that an instruction which might seem to the jury to compel them to give to the word “horse,” as used by the witnesses, an arbitrary technical meaning, instead of its common signification, might mislead them. We do not mean to hold, under our statute, that proof of the larceny of a stallion will sustain an indictment charging the larceny of a gelding. But where an instruction attempting to distinguish between the two classes of animals, and, using the terms “horse” and “gelding,” ignores the fact that in common parlance the terms are used interchangeably, and seems calculated to compel the jury to give to the term “horse,” as used by the various witnesses, a signification not intended by them, the court may properly refuse it. Eor an instruction, however correct, should not be given if, without qualification, it is likely to mislead.
Upon all the points therefore made by counsel for appellant, we think the ruling of the court must be sustained, and the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment. Defendant rested his title upon a tax-deed, and a decree quieting title. Both were held void. The ruling upon the tax-deed was unquestionably correct. It upon its face disclosed a sale made in 1862 for the taxes of 1861, to the county, and an assignment of the sale-certificate on the 19th of December 1865 by the county clerk, and was based upon that sale; and the assignment, and the deed based thereon, were both void. Sapp v. Morrill, 8 Kas. 677.
Two objections are made to the decree — one that the petition was not sufficient to sustain the decree, and the other that the records show no affidavit for publication, the only service pretended having been made by publication. The action was brought .under' § 569 of the code of 1862, (Comp. Laws, p. 224,) and the petition alleged in general terms that plaintiff was the owner and in peaceable possession of the land, describing it, and that defendant set up and claimed an estate and interest therein adverse to the estate and interest of the plaintiff) and prayed that he be compelled to show his title, and that it be adjudged null and void as against the plaintiff. We think as against any objection that can be raised in this collateral way the plaintiff's petition must be held sufficient. This was not an action outside of the statute, and based upon the old equity rules, in reference to which actions, and the allegations necessary to sustain them, see the case of Douglass v. Nuzum, recently decided by this court, {ante, pp. 515, 521,) but it is an action under the statute, and alleges all the matters named therein. It may be that the allegations are gen eral, and partake something of the nature of mere statements of conclusions of law. But objections on such grounds must be raised in the action, and not out of it. They are not good when a judgment is sought to be collaterally attacked. Nor do we in this case mean to intimate that the objections to this petition would be sufficient for a reversal, even in a direct proceeding therefor. All that we decide is, that they are clearly unavailable for this collateral attack.
The other objection grows out of these facts: The affidavit for publication seems to have been sworn to before the clerk of the court in which the action was brought, and the same court in which the present action was pending. It is signed by the party making the affidavit. The jurat is in proper form, and attested by the signature of the clerk, but without the seal of the court. The defendant offered to prove the genuineness of the clerk’s signature, and the fact that the party did take the affidavit as stated in the jurat, and also asked leave to have the clerk attach the seal to the jurat, but the court refused to admit the testimony, or grant the leave. Was the omission of the seal a fatal defect? We are disposed to think not. It must be remembered that this judgment was attacked collaterally. The question presented is not, whether there was such an error as to justify a reversal, but whether there was such an omission as to wholly invalidate the record. Of course, if it would not compel a reversal, a fortiori it would not destroy the judgment. And it seems to us matter of grave doubt whether on proceedings in error, when it was shown that the affidavit was made as attested by the clerk, whether this court would be justified under § 140 of the code, which provides that, “ The court in every stage of action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect,” in reversing the judgment. Would we not be compelled to consider that a mere clerical omission, which did not affect the substantial rights of the adverse party? It mustabe borne in mind that the omission is not the act of the party, but of the officer of the court in which the proceedings were had. And in the performance of his duties, the clerk is under the direction of the court. (Gen. Stat., p. 770, code, §716.) So that the party having done all that the law required him to do, and having submitted to the court, a court of general jurisdiction, the evidence of what he had done, and that court having passed upon the evidence and found that the service by publication was in all respects legally made, and rendering judgment in his favor for the rights he claimed, is now told that everything is void because the officer of the court, acting under the direction of the court, failed to complete the authentication of an affidavit. Again, the purpose of the signature and seal is, authentication, evidence. Where the evidence comes from a stranger to the tribunal, and the authentication is by an officer in no way connected with the court, it may well be that the authentication should be complete, the evidence perfect. But where the affidavit is taken before the clerk, it is before an officer whose signature is judicially known to the judge, one who is in fact a part of the court. The authentication is not made stronger by the attachment of the seal, for that of which the courts take judicial knowledge is not made more certain by mere testimony. An affidavit before the clerk, to be used before the court, is very like swearing a witness by the clerk to be examined on a trial before the court. The clerk is simply the instrument by which the court has acted. As a matter of fact, we think the general practice throughout the state has been for clerks authenticating affidavits for use in their own courts to omit the seal, and simply attest with their signatures. Now if all these affidavits, and the judgments and rights founded on them, are absolutely void, or if depending for their validity upon the discretion of the judge before whom for the time the question may be pending, we fear the uncertainty of judicial titles would be greatly enhanced. Counsel do not seem to question the power of the court to allow amendments, but contend that under the rules laid down in Foreman v. Carter, 9 Kas. 674, an amendment was properly refused. In that case indeed, one of the defects sought to be amended was the same as that existing here. The other defect was one caused by the party himself, and involved really the principal question. We however drew no distinction between them in the opinion, and spoke of the rights of amendment generally, with reference to such defects. It may be that this case comes within the principles there suggested as forbidding amendments — though that we do not so decide— and if an amendment was necessary to give validity to the record it may be that the ruling of the court below was correct. But after a careful consideration of the case, without however finding much of authority directly in point, we are constrained to hold that, as against any collateral attack, a judgment is not invalidated by the mere omission of the clerk of the court in which the action was pending to attach the seal to an affidavit taken before him, and authenticated by his signature, when it appears that such affidavit has been presented to the court for its consideration, and by it approved. The case apparently nearest in point,-cited by counsel, is that of Tunis v. Withrow, 10 Iowa, 305, in which an affidavit taken before a notary public, and unattested by his official seal, was held insufficient to sustain a service based upon it. But there is this vital difference: the party there taking the affidavit was not an officer of the court, but a stranger to the tribunal.
The judgment will be reversed, and the case remanded . with instructions to grant a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error, plaintiff below, brought his action upon two promissory notes. The case was tried by the district court without a jury. No special findings of fact were made, but only a general finding for defendant.
But a single question really is presented, and that is, whether upon the testimony the' plaintiff was entitled to a judgment. For, while counsel speak of error in the admission of certain books of the defendant, yet, as not a line out of the books was read in evidence, and no reference made to them after their admission, it seems hardly necessary to inquire whether the court ruled correctly in admitting them. Upon the facts then, was the plaintiff entitled to judgment? And the question, it must be remembered, is, not whether upon the testimony a judgment in favor of the plaintiff could be sustained, but whether upon that testimony the judgment must have been for him. In other words, cannot the finding in favor of the defendant be sustained? Turning to the record, these things appear: One note was as follows — and the other was in form similar:
King Iron-Bridge Manufactory and Iron Works, $4,915.57. Topeka, Nov. 9th, 1872. •
Pour months after date, we promise to pay to the order of A. J. Baker, forty-nine hundred and fifteen and 57-100 dollars, for value received, without defalcation.
T) n,r o ' a > TT n T. B. MlLLS, V. P. B. M. Smith, Sec y K. B. Co. ’
Indorsed: “A. J. Baker,” “Coleman, Rahm & Co.”
The president of the company during the fall of 1872 was Zenas King, who was absent from the state. Messrs. Mills and Smith were respectively vice-president and secretary, and apparently the active managers of the affairs of the corporation, superintending the construction of the buildings, making contracts, signing notes, drafts and checks. The “ Iola Bridge Company,” a corporation located and doing business in Iola, had been engaged in the same business as the Topeka Bridge Company (defendant herein) was purposing to engage in, an(l for which buildings were being erected and other preparations made. The debt for which these notes were given was a debt due from the Iola Bridge Co. to Coleman, Rahm & Co. for iron. T. B. Mills, the vice-president of the Topeka Bridge Co., was president of the Iola company. The Topeka Bridge Co. bought of the Iola company all its assets, except the real estate, and in consideration thereof assumed the payment of certain specific indebtedness. These notes were not a part of the indebtedness thus assumed, although the draft hereinafter referred to was. These notes were taken by Mr. Rahm, of Coleman, Rahm & Co., who was at Topeka to settle the claim against the Iola company, and he took these notes in payment. They- were drawn to the order of A. J. Baker, to enable him to indorse them, as at his instance in the first place the debt was created. Whether “Francis Rahm,” the plaintiff, is the “Mr. Rahm” of Coleman, Rahm & Co., does not appear. Neither was there any evidence to show when the notes were indorsed to plaintiff. The indebtedness of the Iola company to Coleman, ■ Rahm & Co. was nearly $5,000 in.excess of the amount of these notes. For this amount, at the same time, a ninety-day draft was drawn on Daniel M. Adams, who at that time had no official connection with the defendant, but who some sixty days thereafter, and before the maturity of the draft, became its vice-president and .treasurer. Adams paid the draft, and was credited with the amount in his settlement with the company as its treasurer. There was nothing upon the face of the draft to show on whose account it was drawn. It was signed “ T. B. Mills, President,” and directed to “ Daniel M. Adams, Topeka, Kansas.” Mr. Mills was, as we have seen, president of the Iola company. He testified in his deposition that it was drawn by him as vice-president of the Topeka company. There was testimony tending to show that some $45,000 of the indebtedness of the Iola company assumed by the Topeka company was fictitious, and running to the officers of the Topeka company. No express authority from the board of directors to Messrs. Mills and Smith to execute these notes was shown, and no formal ratification of the act. The testimony is conflicting as to whether any knowledge of the transaction was communicated to or possessed by the directors or any of them until the presentation of the first note for payment.
This comprises, we think, all the material portions of the testimony; and upon this we remark, in support of the ruling of the district court, that Messrs. Mills and Smith had no authority from the company to bind it to the payment of the debts of another and different corporation. Even if it were conceded that they had all the powers of general managers, still those powers did not extend to the assumption of another company’s debts. Though they might bind the corporation to any debt within the scope of its ordinary business, yet beyond that they were powei’less. Again, while under the contract between the Iola company and the Topeka company by which the latter purchased a part of the assets of the former under an agreement to pay therefor certain of its debts, those creditors whose debts were thus assumed might maintain an action against the Topeka company directly, yet none of the other creditors of the Iola company could. And it mattex’S not that a portion of the indebtedness that the Topka company assumed to pay was fictitious. Whatever effect that might have upon the validity of the sale, as against the creditors of the Iola company, or upon gax’nishee proceedings instituted by such creditors, yet it does not give the right to sxxch creditors to jump over the Iola company and institute an action directly against the Topeka company. And thirdly, as thei’e is no evidence of the time of the indorsements, or that they were made before the maturity of the notes, and this fact is put in issue by the pleadings, the exact facts in reference to the giving of the notes may shown in evidence, and are as competent for a defense to an action by this plaintiff' as to one by the payee. It seems scarcely necessary to enlarge upon these propositions. They are sufficient to support the judgment. We do not wish to be understood as saying that there was no testimony upon which, if uncontradicted, or unqualified, a judgment in favor of the plaintiff could have been supported ; but we do hold, that upon the facts as above stated there is enough to uphold the judgment for the defendant, and it must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Is a woman eligible to the office of county superintendent? In favor of it is the fact that the constitution contains no express disqualification of her, and no affirmative statement of the qualifications therefor, leaving, as is claimed, the people free to choose whomsoever they will. Against it, is the fact that the right to vote is limited to males, implying, as is said, that a fortiori the right to hold office is likewise so restricted, and also the fact that at the time of the adoption of the constitution there was no serious thought of woman’s holding the office, so that the framers thereof could not have intended by that instrument to authorize it. As between these two lines of argument, we yield our assent to the former. “All political power is inherent in the people,” and all powers not delegated by the constitution remain with them. These truths, which lie at the foundation of all republican governments, are distinctly asserted in our own bill of rights, §§ 2 and 20. By the constitution the people have granted certain powers, and to that extent have restricted and limited their own action. But beyond those restrictions, and except as to matters guarded by absolute justice, and the inherent rights of the individual, the power of the people is ■unlimited. There is clearly no question of absolute justice, or individual rights, involved, so that we must look alone to the constitution to ascertain what restrictions the people have placed upon their power of choice of this officer. These restrictions may be as to the persons to make the choice, or as to the persons who may be chosen. Both of these restrictions were presented to the attention of the framers of the constitution in reference to the various offices created by that instrument, and both imposed as to some offices. Thus, generally, the power to choose officers was committed to the male adults — at first to the white male adults. And as to some officers, the power to choose was still further restricted. Thus, as to some, such as district judges, locality was an added restriction; (art. 3, § 5.) The reporter and clerk of this court, are chosen by the justices; (art. 3, §4.) The state printer is chosen by the legislature; (art. 15, §4, as amended in 1868.) And in all these cases, where the people have restricted their power by prescribing the qualifications of those to make the choice of officers, they cannot, except by an amendment of the same instrument, add to or take from those restrictions. They have also prescribed certain qualifications for and imposed certain restrictions as to those who may be chosen. Thus, one who gives or accepts a challenge to fight a duel, or who knowingly carries a challenge, is ineligible to any office; (art. 5, § 5.) Any one who bribes an elector to procure his election, may not hold the office to which he was elected; (art. 5, § 6.) An essential to the holding of a judicial office is, residence in the county, township, or district for which the officer was elected; (art. 3, § 11.) To be a member of the legislature, one must be at the time of his election a qualified voter of and resident in the county or district for which he is chosen; (art. 2, § 4.) Hence, by this, only male adults can be elected to the legislature. None of these qualifications prescribed by the constitution may be disregarded. They are restrictions self-imposed by the people upon their otherwise unlimited freedom of choice. If they have as to certain offices seen fit to restrict their freedom of choice by express words, is it not a fair inference that, where the constitution is silent, they intended no restriction ? In reference to county superintendent the constitution says this, and no more:
“A superintendent of public instruction shall be'elected in each county, whose term of office shall be two years, and whose duty and compensation shall be prescribed bv law.” (Art. 6, §1.) _ _ '
_ _ There is here not only no express disqualification of females, and no affirmative statement of qualifications which would exclude them, but also nothing in the shape of pronoun, or in the terminology, or in the duties imposed, which would imply the necessary or intended exclusion of either sex. But it is said, that there is such a connection between voting and office-holding, that excluding females from the former, is by implication an exclusion of them from the latter; and that in the language of Ch. J. Dixon of "Wisconsin, it is “an enormous absurdity that a person who by the organic law of the state has not one voice among thousands in designating by whom an office shall be filled, may himself be elected to such office, and enjoy its franchises and perform its duties.” In reference to the authority quoted, it may be remarked, that the case, that of The State, ex rel., v. Smith, 14 Wis. 497, presented the question of the right of an alien to hold an office to which he had been elected, there being no express statutory or constitutional disqualification therefor; and the argument from which an adverse conclusion was reached was not the mere relationship of voting to office-holding, but that, underlying statutes and constitution, and as the basis of all governmental organization, was the natural idea, or as the learned Justice expressed it, “As to all such governments (independent popular governments,) it is an acknowledged principle, which lies at the very foundation, and the enforcement of which needs neither the aid of statutory nor constitutional enactments or restrictions, that the government is instituted by the citizens for their liberty and protection, and that it is to be administered, and its powers and functions exercised, only by them, and through their agency.” And he quotes approvingly from the reply of the Justices of the Supreme Court of Massachusetts to the question of the house of representatives, whether an alien could be a legal voter for senators and representatives — “Now we assume as an unquestionable principle of sound national policy in this state, that as the supreme power rests wholly in the citizens, so the exercise of it, or of any branch of it, ought not to be delegated by any but citizens, and only to citizens. It is therefore to be presumed, that the people in making the constitution intended that the supreme power of legislation should not be delegated but by citizens.” But the eases and questions are not alike. It may well be, that the idea of an independent popular government implies that all its functions are to be exercised by citizens, and that it needs no express words to exclude aliens, because the inclinations, interests, and duties of the latter are presumptively with the nation of which they are citizens, and antagonistic everywhere else. But in the case at bar, the inclinations, interests, and duties of both the sexes are in the same direction. Both are alike citizens. There is no antagonism. Whether females shall vote or hold office, is merely a question of internal public policy, and not a matter affecting the life and integrity of the nation, or its relations with other states. It is a very common thing for offices 'to be filled outside of the electoral body, and in many cases it is imperatively so required by statute or custom. Officers of a legislature are a ready illustration. Our own constitution clearly recognizes the absence of any necessary connection between office-holding, and voting. In § 2 of art. 5, as amended, it is provided that “No person under guardianship * * * shall be qualified to vote or hold office in this state.” If as is claimed, one of these is the larger, and includes or implies the other, a p.art of the section quoted is manifestly surplusage.
In reference to the argument that at the time of the adoption of the constitution there was no serious thought of woman’s holding the office, and therefore that the framers thereof could not have intended by that instrument to authorize it, we cannot do better than to quote from the dissenting opinion of Justices Walton and Barrows of the supreme court of Maine, in reply to the question whether in that state a woman could under the constitution hold the office of justice of the peace:
“It may be true, that the framers of the constitution did not contemplate, did not affirmatively intend, that women should hold office. But it by no means follows that they intended the contrary. The truth probably is, that they had no intention one way or the other; that the matter was not even thought of. And it will be noticed that the unconstitutionality of such a law is made to rest, not on any expressed intention of the framers of the constitution that women should not hold office, but upon a presumed absence of intention that they should. This seems to us a dangerous doctrine. It is nothing less than holding that the legislature cannot enact a law unless it appears affirmatively that the framers of the constitution intended that such a law should be enacted. We cannot concur in such a doctrine. It would put a stop to all progress. We understand the correct rule to be the reverse of that, namely, that the legislature may enact any law that they may think proper, unless it appears affirmatively that the framers of the constitution intended that such a law should not be passed. And the best and only safe rule for ascertaining the intention of the makers of any written law, is to abide by the language they have used; and this is especially true of written constitutions, for in preparing such instruments it is but reasonable to presume that every word has been carefully weighed, and that none are inserted, and none omitted without a design for so doing.’’
There is but little of authority to be cited upon this question. In the state of Maine five of the eight Justices were of the opinion that under the constitution a woman could not hold the office of justice of the peace, but could be authorized to administer oaths, take acknowledgment of deeds, and solemnize marriages. (Chicago Legal News, vol.7, p. 10; 62 Maine, 596.) To a question of the legislature, whether under the constitution women could act as members of a school committee, the supreme court of Massachusetts replied as follows:
“The question is limited to the effect of the constitution upon the capacity of a woman to hold this office, and involves no interpretation of statutes. If the constitution prevents a woman from being a member of a school committee, it must be by force of some express provision thereof, or else by necessary implication, arising either from the nature of the office itself, or from the law of Massachusetts as existing when the constitution was adopted, and in the light of which it must be read. But the constitution contains nothing relating to school committees; the office is created and regulated by statute; and the constitution confers upon the general court full power and authority to name and settle annually, or provide by fixed laws for naming and settling all civil officers within the commonwealth, the election and qualification of whom are not in the constitution otherwise provided for. The common law of England, which was our law upon the subject, permitted a woman to fill any local office of an administrative character, the duties attached to which were such that a woman was competent to perform them. The duties of a school committee relate exclusively to the education of children and youth in the town or city for which it is elected. They consist of the general charge and superintendence of the schools, including the employment of teachers, the selection of school-books, the regulation of the attendance of scholars, and the preparation of school registers and returns; and they are in no respect of such a nature that they cannot be well and efficiently performed by women. The necessary conclusion is, that there is nothing in the constitution of the commonwealth to prevent a woman from being a member of a school committee, and the proposed question must be respectfully answered in the affirmative.” (115 Mass. 602.)
Without pursuing this matter further, our conclusion is, that women are in this state eligible to the office of county superintendent. The judgment therefore will be reversed, and the case remanded with instructions to proceed 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 action was brought in the court below by Hannah M. Walker, as plaintiff. The material facts upon which said Walker’s cause of action is founded, as appears from her petition, are substantially as follows: On November 4th 1872, H. C. Hay (plaintiff in error here) loaned her the sum of $1,000 for the term of one year, at the usurious rate of interest of 54 per cent, per annum, and to evidence said loan, she and W. N. Walker, her husband, executed and delivered to him their promissory note for the sum of $1,540, bearing date on said day, payable to Hay’s order, in one year thereafter, with interest at 12 per cent, per annum after maturity, the sum of $540 thereof representing the usurious interest reserved for the use of said $1,000. Said note was secured by a mortgage on certain real estate in Sedgwick county, executed by defendant in error and her said husband. Long before the maturity of said note, plaintiff in error by indorsement and for a valuable consideration transferred said note to one Hollis Hay, who had no knowledge or notice of said usurious contract, and who by said transfer became the owner of said note and mortgage. On December 13th 1873, said Hollis Day obtained judgment against defendant in error in the district court of Sedgwick county for the amount of said principal and interest mentioned in said note, and for the sale of said mortgaged real estate to pay the same; and on March 9th 1874, he was about to cause said real estate to be sold to satisfy said sum under a legal process issued upon said judgment, and then defendant in error was compelled to and did pay to said Hollis Day said sum, $1,604.14, of which $447.50 was usurious interest reserved for said loan, and by reason of the premises said H. C. Day became liable to pay defendant in error said $447.50, with interest from March 9th 1874, which he has refused to pay, although requested. To this petition plaintiff in error demurred. The district court overruled the demurrer, and Day excepted. After the overruling of said demurrer Day filed his answer. He admitted the execution and delivery of the note and mortgage, as alleged, and also the assigment thereof to Hollis Day, and then as a defense alleged that on October 22d 1873 one Geo. H. Sweet commenced an action as plaintiff against said Hollis Day and said Hannah M. Walker, as defendants; that due service was obtained on both of said defendants; that that action was brought to foreclose a lien on said mortgaged estate; that the petition of said Sweet alleged that Hollis Day had or claimed some interest in said real estate; that said Day appeared and answered, and filed his cross-petition therein against his codefendant (Walker,) setting up the note and mortgage in question and demanding judgment against her for the full amount of said note, for the foreclosure of his lien, and the sale of the property to pay said judgment, and that the said Walker neglected and refused to answer said petition and said cross-petition, but suffered judgment to be rendered against her by default, in favor of Sweet, and also in favor of said Hollis Day for the full amount specified in said note, with interest, etc., and that afterward she fully paid off, satisfied and discharged said judgment. To this answer the defendant in error demurred, as not stating facts sufficient to constitute a defense. This demurrer was sustained by the court, and plaintiff in error excepted.
We are inclined to think that the court below erred. We think that the petition does not state facts sufficient to constitute a cause of action; that the answer does state facts sufficient to constitute a good defense to the plaintiff’s supposed cause of action; that the demurrer to the petition should have been sustained; that the demurrer to the answer should have been carried back to the petition, and sustained as against it, and not as against the answer. We have no statute in this state making it illegal to contract for usurious interest, or to pay or receive the same. Section 1 of the interest law, as amended, provides that, in the absence of contract, interest at the rate of seven per cent, per annum may be received. (Laws of 1871, p. 250.) Section 2, as amended, provides that the parties may contract for any rate of interest, “Provided, that no person shall recover in any court more than twelve per cent, interest per annum.” (Laws of 1872, p. 284.) Section 3, as amended, provides that, “All payments of money or property made by way of usurious interest, or of inducement to contract for more than twelve per cent, per annum, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal and twelve per cent, interest per annum, and the courts shall render judgment for no greater sum than the balance found due after deducting the payments of money or property made as aforesaid.” (Laws of 1872, p. 284.) Section 4 of the interest law of 1868 has been repealed; (Laws of 1872, p. 284, § 3.) Section 5 provides that judgment shall draw interest at the rate of seven per cent, per annum, except as otherwise provided; (Gen. Stat. 526.) Section 6 provides that judgments upon contracts shall draw interest at the rate expressed in the contract, not to exceed twelve per cent, per annum; (Gen. Stat. 526.) This is the substance of the interest laws.
Now upon what principle can this action be maintained? Not under the statute, for there is no statute authorizing such an action. Not upon any contract of the defendant below, for he has violated no contract, and has paid to the plaintiff every cent that he ever agreed to pay her. Not upon any tort, for it is not shown that the plaintiff ever committed any tort. Not upon any fraud or overreaching, for it is not claimed that the plaintiff was ever in any manner deceived or defrauded. Not for money paid, for it cannot be claimed that the plaintiff ever paid any money to or for the use of the defendant. Not for money had and received, for it cannot be claimed that the defendant ever received from the plaintiff or from any other person any money. The defendant paid to the plaintiff $1,000. He was entitled according to law to receive back at the end of one year $1,120. He has received nothing from the plaintiff. He however transferred the note “for a valuable consideration” to one Hollis Day. But what he received from Hollis Day, we do not know. Whether it was money or property, or whether it was worth one dollar, or one thousand dollars, or some other sum, more or less, we have not been informed. Suppose the defendant exchanged the note for a horse worth $300: would it be right for the plaintiff to recover from the defendant $447.50, when the defendant did nothing more than what the plaintiff had authorized him by the note to do? The note was negotiable, and payable to the order of the payee, and the transfer thereof was just what the plaintiff authorized the defendant to do by the note itself. The most plausible grounds upon which the plaintiff below may claim to recover in this action are probably as follows: Sec. 3 of the interest laws provides, that “all payments of money or property made by way of usurious interest, or of inducement to contract for more than twelve per cent, per annum, shall be deemed and taken to be payments made on account of the principal and twelve per cent, interest per annum.” The consideration of the note in this case was $1,000 in cash, $120 legal interest for one year, and $420 usurious interest. This usurious in terest may under said § 3 be considered as a payment on the principal, and should have been indorsed on the note, leaving as due on the note only $1,120. This amount was all that the defendant should have assigned to Hollis Day. The amount however of $420 was not indorsed on said note. The note was sold and assigned to Hollis Day as though nothing had been paid thereon, and as though the note was properly for $1,540. Hollis Day was an innocent and bona fide purchaser of the note. The plaintiff was therefore compelled to pay him the full amount of the note, and therefore the plaintiff may now recover the amount of the usurious interest from the defendant.- This argument however fails in the following particulars: 1st.-The statute provides for only actual payments of money or property being considered as payments on the principal, and there was no actual payment in this case by the plaintiff to the defendant of any money or property. 2d. — There is no claim that the defendant ever received from any source any payment of money or property more than he was entitled to receive,-or more than he could have collected from the plaintiff on the note. 3d.-There was no understanding or agreement by the parties that said $420 usurious interest should be considered as a payment on account of the principal, but on the contrary both parties understood and agreed that it should be paid in addition to the principal and legal interest, to whoever might be the holder of the note.
There was no failure of consideration. The consideration that the plaintiff received was eminently valuable, and was all that she ever expected to receive. It was all that the parties stipulated for, and all that they ever had in contemplation. There was no deception or fraud, no mistake or misapprehension. Both parties knew exactly what they were doing, and what they were getting, and no disappointment subsequently ensued. And the whole transaction was purely voluntary on the part of the plaintiff. If, instead of giving her note for $1,540 for the one thousand dollars in cash, she had given money or property worth $1,540, we still appre hend sbe would have no action to recover the surplus back. Now, we understand that actions to recover money back because of a failure of consideration, can be maintained only when there has been some mistake or misapprehension with reference to the consideration, and not where the parties had full knowledge of all the circumstances at the time of making the contract, at the time the consideration passed, and at the time of paying the money. But we do not wish to assert principles beyond the necessities of this case.
The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion.
All the Justices con^Rrring.
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The opinion of the court was delivered by
Brewer, J.:
The action below was for liquors sold and delivered by defendant in error to plaintiff in error. The case was tried before the court without a jury. No special findings of fact were made, and no exceptions to the introduction of testimony. So that the only question presented for our consideration is, whether the evidence is sufficient to sustain the judgment. It appears that Gordon, the plaintiff below, was a wholesale liquor-merchant in St. Louis; .that the liquors were sold and delivered to McCarty. The special defense was, that plaintiff had no license to sell liquor in the state of Kansas, and that the liquors were sold in Leavenworth. On the contrary, the testimony shows simply that orders were taken in Leavenworth for the goods, which orders were filled in St. Louis, and the goods shipped therefrom to plaintiff in error. This brings the case clearly within the cases of Haug v. Gillett and Williams v. Feiniman, heretofore decided by this court; (14 Kas. 140, 288.) But it is said that there is this difference, that here the goods were sold by sample, and that it was expressly agreed that the goods were not to be received and accepted by McCarty unless they “ proved identical with the order given, in quality and in quantity,” and that he “reserved the right to reject the liquors, so ordered and sent, for any deficiency in quality or quantity; and in case of such deficiency to return the goods to plaintiff.” We cannot see that this difference is material. The express contract was no more than the one the law would imply from a sale by sample. It is always understood that a party purchasing by sample is under no obligation to receive the goods sent unless they correspond with the sample, and are equal to the quantity ordered. The case of Brothby v. Plaisted, 51 N. H. 436, (also a liquor case,) is exactly in point, and sustains the views we have expressed.
Again, it is urged that, though these principles may be applicable to most of the account, yet as to one barrel of whisky the circumstances of the sale make a very different case, and show a sale in Leavenworth. It appears from the testimony of McCarty that one barrel of whisky that was shipped to him was inferior to the sample, and that he refused to accept it, and so notified plaintiff; that upon plain tiff’s request it was not reshipped to St. Louis, but held in Leavenworth until plaintiff came, and that plaintiff in Leavenworth made a new contract with him, and sold and delivered the whisky at twenty-five cents a gallon less than the price originally charged. Conceding, for the purposes of this case, that this shows a sale in Leavenworth, we are still constrained to sustain the judgment, and for two reasons: The account is for six barrels of whisky, each containing a different number of gallons,, and at various prices per gallon. Now we are not informed by the testimony which barrel it was that was so sold, and there is nothing in the account, or the testimony, upon which we could base even a reasonable guess concerning it. Again, the defendant has paid in different sums an amount far exceeding the price of any one barrel. It does not appear that these payments were- made as payments for any particular 'barrel, but simply on account of the entire debt. But they were so paid that no barrel was delivered without subsequent payments large enough tó more than equal its price. So that if the debtor had not applied the payment to the purchase of any particular barrel, and the creditor had applied it to the payment of the one sold in Leavenworth, it would have more than paid therefor. Now in view of these facts, and inasmuch as the court made no special finding of facts, but only a general finding for plaintiff, it does not seem to us that we can hold that there is error apparent in the record.
The judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by John Yanz against the Kansas Pacific Railway Company for killing one of the plaintiff’s cows. The act of 1874, (Laws of 1874, pp. 143, 144,) authorizing the recovery of damages and the recovery of attorney-fees in such cases, has already been held by this court to be constitutional and valid. (K. P. Rly. Co. v. Mower, ante, p. 573.) The only question then for us now to consider is, whether under said act, and under the facts of this case, the plaintiff is entitled to recover. The action was commenced in a justice’s court, and the plaintiff filed a bill of particulars therein, which reads as follows:
{Title.) “The said John Yanz, plaintiff, complains of the said Kansas Pacific Railway Company, a corporation operating a railway through the county of Pottawatomie in the state of Kansas, defendant, for that the said plaintiff was, on the 5th of August 1874, the owner of a milch cow of the value of $30, and that the said defendant in operating its railway, and by the engine and cars on the said railway, did kill the said cow of the said plaintiff, to the damage of the said plaintiff $30. And said plaintiff further says, that on the 29th of August 1874 he demanded of said Kansas Pacific Railway Company payment of the damages aforesaid, for said cow killed as aforesaid, which said defendant refused and still refuses to pay.
“Wherefore plaintiff prays judgment for said sum of $30, together with costs of suit, and a reasonable attorney-fee for the prosecution of this suit.”
The defendant, for its bill of particulars, filed a general denial. The ease was then tried on these pleadings, and judgment was rendered in favor of the plaintiff for $30 for the cow, $10 for attorney-fees, and for costs. The defendant appealed to the district court, where the case was again tried by the court, without a jury. None of the evidence introduced on the trial was preserved, but the court, at the request of the defendant, made special findings of fact and of law. Among the findings of fact were the following, to-wit:
“The railroad of the defendant, at the time and place where said cow was killed, was not fenced.
“On the 28th of September 1874, the plaintiff commenced his suit before Justice Baker, in Wamego township, for the recovery of said damages. A reasonable attorney-fee for the prosecution of said suit by Messrs. Merritt, his attorneys, was $10; and a reasonable attorney-fee for prosecuting the suit on this appeal by said attorneys, is $25.”
“The defendant objected to any evidence being given of the value of attorney-fees for prosecuting said suit, or to any finding concerning the same, which objection the court overruled, and the defendant excepted.” The court, after making said special findings of fact and law, rendered judgment in favor of the plaintiff for $30 for the cow, $10 for attorney-fees in the justice’s court, $25 for attorney-fees in the district court, and for costs. The defendant now brings the case to this court, and assigns for error that, “ The decision of said judge was contrary to law.” This is the only assignment of error. The defendant however, now, as plaintiff in error, claims in its brief that the bill of particulars of the plaintiff below was not sufficient: First, because it did not allege that the company’s road was not fenced; second, because it did not claim as damages as much as the judgment was rendered for. And plaintiff in error also now claims in its brief, that the findings of the court do not support the judgment for attorney-fees. If these questions can or ought to be considered under said assignment of error, which is at least doubtful, we would have to decide upon all of them against the plaintiff in error. No objection was made in the court below to the plaintiff’s bill of particulars. No objection was made to the finding of the court, “that the railroad of the defendant, at the time and place where said cow was killed, was not fenced.” And no objection seems to have been made to the introduction of evidence to prove that the road was not fenced. The case was tried from beginning to end as though the plaintiff’s bill of particulars was sufficient in every respect, except possibly as to attorney-fees. But even as to attorney-fees, it does not appear from the record that the objection to said evidence and said finding concerning attorney-fees was made because of any supposed defect in the plaintiff’s bill of particulars. The objection to the sufficiency of the bill of particulars is really made for the first time in this court, and then it is made by the brief, and not by the petition in error, except possibly by remote inference. We are inclined to think that the bill of particulars, as a bill of particulars in a justice’s court, is not quite so bad as plaintiff -in error claims. But even if it is as defective as plaintiff in error claims, still we think the proceeding to trial without any objection thereto, the introduction of evidence under it, as though it was sufficient, and the findings and judgment of the court under it, waived and cured all the supposed defects. In connection with this question, see Dresser v. Wood, 15 Kas. 362, 363. It has never been considered, so far as we are aware, that the bill of particulars in a justice’s court should state the facts with the same precision, exactness and elaborateness of detail, as a pleading in one of the higher courts; and yet said bill of particulars is about as good as the petition in error in this case.
We think the findings of the court below with respect to attorney-fees were sufficient.
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.:
This was an action to foreclose a note and mortgage. The note was payable to Brown Bros., was indorsed by them to one R. B. Waite, and by him to the plaintiff. All this, as admitted by the pleadings, took place before maturity. The answer, admitting that $500 was due, (that being the amount' actually borrowed and received by defendants,) and offering a judgment, alleged that the balance of the note, $150, was for illegal and usurious interest, and that the plaintiff “took and received said note with full and complete knowledge of the nature and terms of said usurious and illegal contract.” As no reply appears in the record, it would seem as though there were • nothing to try, and that the court, upon the pleadings, should have entered judgment for the $500 and twelve-per-cent, interest. (Laws of 1872, p. 284, §§ 1 and 2.) But the case was tried by both parties as though the allegations of new matter in the answer were denied; and we shall take the case upon that basis, as in our judgment, upon that basis, there was such error as requires a reversal. If there really be no reply on file, the trial court can in its discretion permit the filing of a reply upon such terms as may be just and proper.
Counsel for plaintiff in error call our attention to a dozen or more matters in which they claim the court erred. It is unnecessary for us to notice all these in detail. It is obvious that, upon the supposition that the reply was a simple denial, the defendants were called upon to establish two propositions —first, that the amount of the note in excess of $500 was for illegal and usurious interest, and second, that the plaintiff bought with knowledge. And testimony which tended to prove either fact was competent, irrespective of the question whether the other fact were proven or not. Counsel on the trial objected to the admission of a good deal of testimony tending to prove the first fact, as incompetent, because the second fact was not proved; and now present these matters to this court as points of error. It seems unnecessary to more than state the facts to show the correctness of the ruling.
Again, counsel insist that the court improperly permitted the jury to separate during the progress of the trial. As it does not appear that they were permitted to separate except during the intervals of the session of the court, and before retiring to consider of their verdict, it is difficult to see wherein there was any improper separation.
It appears that in addition to the general verdict the plaintiff requested the court to submit to the jury certain questions of fact, and require answers thereto. This the court refused. It seems to us that these questions were pertinent and appropriate, and should have been submitted. The first ran directly to the point of plaintiff’s knowledge of the usurious contract at the time of receiving the note. This was one of the essential matters in dispute; and a specific question in reference thereto the court had no discretion to refuse. The law in force at the time is to be found in ch. 91 of the Lawa of 1874. That provides that, “in all cases the jury shall render a general verdict; and the court shall, in any case, at the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same.” This does not give a discretion to the court, but a right to the parties. We do not of course understand the law as compelling the court to submit every question presented, even though irrelevant, immaterial, or frivolous; but where a question is submitted as to a particular fact which is pertinent to the issues, and necessarily to be determined .by the jury, the court has no discretion to refuse. L. L. & G. Rld. Co. v. Rice, 10 Kas. 426. For this error the judgment mjist be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The facts of this case are briefly as follows: Gillpatrick and Rizer were the administrators of the estate of Samuel S. Caswell deceased, appointed in 1871. Rizer, into whose hands the funds of the estate seem to have passed, deposited them with the banking firm of James Streeter & Co., of which firm he was a member. When the three years for. closing estates had passed, Gillpatrick desired to make a final settlement, draw out the funds from the bank, and pay them over to the heir. Rizer was unwilling. After some delay, Gillpatrick, as one of the administrators, brings this action against Streeter & Co. to recover from them the amount deposited, and makes his co-administrator a party defendant, alleging that he refused to join in any settlement of the estate, and to join in bringing this or any action to recover the funds. Demurrers by Streeter & Co., and by the eo-administrator, to the petition were overruled, and this is the first question presented. Subsequently the sole heir of the deceased brought an action against the two administrators and the surety on their official bond, alleging a final settlement had, since the commencement of the suit by Gillpatrick, a balance due on said settlement, and praying judgment for such balance. Upon this the defendants herein filed a motion setting up said proceedings, and asking a dismissal of this action. This motion was also overruled, and this is the only other question presented. The case then proceeded to judgment in favor of Gillpatrick. The judgment however directed that the amount found due from Streeter & Co. be paid to the clerk of the court, to be applied under its order to the satisfaction of the demand of the heir for the balance due from the estate.
Was there any error in these rulings? We think not. The learned counsel for plaintiff in error contend, that one administrator cannot sue his co-administrator, nor sue alone for a debt due the estate; that under the executors-and-administrators act, if one administrator neglects his duty, he can be removed by the probate court, and the remaining, administrator can then proceed to close up the estate alone, and that this remedy is to the exclusion of any other. It is undoubtedly true, as a general proposition, that one administrator, there being more than one, cannot sue alone for a debt due the estate. There is a unity of interest which requires that all should join as plaintiffs. The debt is due to the estate, and neither partially nor wholly to either administrator. The estate, is the party in interest, and the legal representatives of that party must be the nominal plaintiffs. This is true in all cases where there is a unity of interest in several parties. The code so provides, (Gen. Stat. 636, §37:) “Of the parties to the action, those who are united in interest must be joined as plaintiffs, or defendants.” But it also provides for a contingency like the present, in which one of those united in interest refuses to join as plaintiff. The latter part of the same section reads, “But if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition.” Language could not be more apt for a case like the present. The time for closing an estate having ar- • rived, one of the administrators desires to collect from the bank the money of the estate there deposited, make a final settlement, and pay- over to the heir the balance found due. The bank refuses to pay, and the other administrator refuses to join in a suit to compel payment. It is exactly the condition named in the statute. This was allowable under the old practice in equitable actions. Now there is but one form of actions, and the language of the statute is general, applying to all' actions. In Pomeroy on Remedies and Remedial Rights, a late work, and one which is the most philosophical treatise on the code yet published, and one of the few text-books among the many flooding the press and the profession to-day having permanent value, and destined to rank among the legal classics, on page 309, § 261, the author says: “It is not indispensable, however, that all the executors or administrators should be plaintiffs; for it is enough, in equity, if all the parties are before the court, so that one executor or administrator may sue as plaintiff, if he make his co-executor or co-administrator a defendant” — citing Wilkins v. Fry, 1 Meriv. 244, 262; Blount v. Burrow, 3 Bro. C. C. 90; Dare v. Allen, 1 Green Ch. 288. And again, on page 233, § 195, he adds, after quoting § 37, code of Kansas, and the like provision from other states: “Referring to these provisions, it is plain that their language is general, inclusive, without exception, and applying alike to all kinds and classes of actions.” And'further, “No exception being made, nor even suggested,' the courts cannot, unless by an act of positive legislation, by an act of direct usurpation, create an exception, and say that these general terms were intended to apply to equitable suits alone, while legal actions were intended to be left outside of their scope and effect.” See also Decker v. Miller, 2 Paige, 150; Smith v. Lawrence, 11 Paige, 206; M’Gregor v. M’Gregor, 35 N. Y. 218. It is true, that Eizer had an equal right with Gill'pat-rick, pending the administration, to the possession and control of the funds, and under ordinary circumstances,'neither could maintain an action to recover these funds from the other. But here, the duty of closing the estate, and. paying over the balance to the heir, existed. Eizer refused to discharge this duty. One step of the duty was the collection from the bank of the funds there deposited. The bank owed the estate so much. Both administrators should have united in collecting this debt. Eizer’s refusal justified Gillpatrick in proceeding alone. That any remedy the one administrator might have by proceedings in the probate court does not exclude the jurisdiction of the district court in this case, seems clear. Shoemaker v. Brown, 10 Kas. 383.
Nor do we see upon what principle it can be held that this action is abated by the subsequent suit of the heir upon the bond. Payment to the heir might prevent a judgment for anything but the costs accrued prior to the payment. It happens in this case, that one of the bankers is surety on the administrator’s bond, and therefore defendant in both suits. But that accidental fact cannot change the rule of law applicable to all cases of this kind. And to guard against any possible danger of the surety’s being compelled to pay twice, through any misappropriation by the administrator, the court has provided in the judgment in this action that the money be paid to -the clerk, to be applied under its own order in satisfaction of the claim of the heir. M’Gregor v. M’Gregor, 35 N.Y. 218. There is between the two cases no identity of parties, or in the cause of action; and if there were, the second would abate rather than the first. “The pendency of an action will make a second action, for the same cause, and in which the same judgment can be rendered, abatable; but not vice versa.” Buffin v. Tilton, 17 Pick. 510; Webster v. Randall, 19 Pick. 13. A subsequent suit may be abated by an allegation of the pendency of a prior suit, but the converse of the proposition is, in personal actions, never true. Renner v. Marshall, 1 Wheat. 215; Bacon’s Abr., Tit. Abatement, M.
Upon the whole case we see no error, and the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to have an ordinance of the defendant city apportioning and assessing the costs of paving a street declared null and void insofar as it affected plaintiff’s property and to enjoin the city clerk from certifying the assessment to the county clerk. The defendants answered. To this answer the plaintiff demurred; the demurrer was sustained and the defendants have appealed to this court from that ruling.
In a preliminary way it may be stated that the action grows out of the assessments made to defray the cost of paving Countryside Plaza, a street in Grandview Heights in the defendant city. At tached to the defendants’ answer is a copy of a plat. Insofar as here necessary to state, that plat shows that Countryside Plaza extends west from Bluff Avenue to Roosevelt Avenue and beyond to Clifton Avenue. Immediately west of Bluff Avenue and on the north side of Countryside Plaza is Block 3 consisting of ten sixty-foot lots 135 feet deep north and south and bounded on the west by Roosevelt Avenue. Bluff Avenue does not extend north of the north line of Block 3. Immediately north of Block 3 and abutting directly thereon is a rectangular piece of land approximately 650 feet east and west and 990 feet north and south. Although not shown by the plat it seems undisputed this rectangle is only the western portion of an entire tract of about thirty acres owned by the plaintiff. Immediately west of Roosevelt Avenue is Block 2 which extends north from Countryside Plaza for a distance of about 670 feet to the south side of Osie Street, the east end of which abuts plaintiff’s tract but does not extend into it. The only streets shown as abutting plaintiff’s tract are Roosevelt Avenue on the west and Harry Street on the north. The plat and the record before us do not disclose that at any place on the south side there is any street abutting any part of plaintiff’s entire tract, nor what lies to the east of plaintiff’s tract nor how far to the east the first north and south street may be.
Plaintiff’s petition alleged the status of the parties; that it owned a tract of land of approximately thirty acres which had never been platted nor laid out with streets and alleys; that on September 16, 1952, the city had adopted an ordinance assessing its tract in the sum of $2,950.86 for paving Countryside Plaza between Bluff and Clifton streets in the city of Wichita, and that the ordinance was contrary to G. S. 1949, 12-601, which was quoted, and the general effect of which is that whenever a street is improved, the cost shall be paid by and assessed to the property on each side of the street to the middle of the block, and therefore the portion of the ordinance affecting plaintiff’s property was null and void. Allegations as to the duty of the city clerk to certify the assessment to the county clerk unless restrained need no attention. The prayer was that the ordinance be declared void insofar as it affected plaintiff and that the city clerk be enjoined from certifying the assessment to the county clerk.
The defendants filed an answer admitting status of the parties; that plaintiff owned an unplatted tract of land but that a plat attached to his petition did not accurately and completely show the location of the tract in relation to the streets and other areas; that the city had adopted the ordinance making the assessment, and that it was the city clerk’s duty to certify the assessment to the county clerk; denying that the ordinance was null and void; that they attached to their answer a plat accurately portraying the location of the plaintiff’s tract in relation to the streets, and other areas composing the plat; that they attached a copy of the ordinance which had been duly adopted and published, and that pursuant to the ordinance the special assessment was validly made against the land of the plaintiff to the middle of the block as provided by G. S. 1949, 12-601, and:
“That the area bounded by Bluff Avenue, Countryside Plaza, Roosevelt Avenue and Osie Street (extended) constituted a block within the meaning of said statute. That the special assessment against plaintiff’s land was and is valid and in every respect made in conformity with law.”
The prayer was that plaintiff be denied relief and that defendants recover their costs.
The ordinance stated that the cost of improving Countryside Plaza from Clifton Avenue to Bluff Avenue chargeable to private property owners had been ascertained to be $18,968.96 and the payment of each lot and parcel of land had been equalized on all lots and parcels of land to the center of the block on either side of said street for the distance to be paved, and that there was apportioned and assessed to pay the cost of the improvement the following sums on the following described lots and parcels of land, followed by a number of descriptions in the various blocks fronting on the improved street and including a metes and bounds description covering the south 199.5 feet of plaintiff’s lands immediately north of Block 3 and an assessment in the amount of $2,950.86.
To this answer the plaintiff demurred for the reason the answer stated no defense, but specifically showed that the city levied the assessment contrary to the statutes of Kansas and without statutory authority. This demurrer was sustained and the defendants perfected their appeal.
Although appellants state the question involved is whether the trial court erred in sustaining the demurrer to their answer, they also say that put in different words the question is whether the area bounded by Bluff Avenue, Countryside Plaza, Roosevelt Avenue, and Osie Street (extended) constitutes a block within the meaning of G. S. 1949, 12-601, which we summarize as providing that whenever any street shall be paved or improved “the cost of such im provement shall be paid by and assessed to the property on each side of said street ... to the middle of the block.”
Although not explicitly pleaded in their answer, at the oral argument appellants stated that the extent of lands of appellee against which the assessment was rendered was arrived at by considering the south line of Osie Street as though it extended into appellee’s tract, and using that as a north boundary and Countryside Plaza as the south boundary, the tract so created was considered as a block and the assessment levied on that part of appellee’s tract south of the middle line of the block created. It is clear that to so create a block, it was necessary not only that the south line of Osie Street be extended, but that Bluff Avenue, which as platted did not enter appellee’s tract, be also extended. Unless those two things could be done, appellee’s land subjected to assessment, together with the lots in Block 3 of Grandview Heights, did not constitute a block or tract of land surrounded by streets. Appellants cite no statute authorizing the city to so create a block for the purpose of assessment for street improvements and we know of none. In the very recent case of State, ex rel., v. City of Topeka, 175 Kan. 488, 264 P. 2d 901, the question before this court was the power of a city to carve out of an unplatted piece or tract of land exceeding twenty acres a tract not exceeding twenty acres and annex the tract so created. In that opinion it was held that cities are creations of the legislature and can exercise only the power conferred by law, that they take no power by implication, that the only power they acquire in addition to that expressly granted is that necessary to make effective the power expressly conferred, and that a city had no power to carve out of the larger tract a smaller tract and annex it to the city. We are of the opinion that that case is analogous here, and that the city was without power to consider as extended through appellee’s tract streets only the ends of which abut that tract, and thus create a fictional black where in fact there is none.
Appellants contend, however, that if the extension of the south line of Osie Street was unwarranted appellee was not harmed for the north end of its tract borders Harry Street, and if that be considered as the north end of the block the median line between it and Countryside Plaza would include a greater portion of appellee’s tract and its assessment would be increased, and appellee cannot complain because its assessment was not larger, citing Railway Co. v. City of Topeka, 103 Kan. 897, 176 Pac. 642. A reference to the plat included in the opinion in that case shows a block surrounded by streets, and consisting of both platted and unplatted lands. The case is not decisive of the question whether the appellee’s lands in the instant case are part of a block as that word is used in the statute.
Appellants direct our attention to Wilson v. City of Topeka, 168 Kan. 236, 212 P. 2d 218, as holding that it is not essential that all of the area in a block be composed of platted lots but that it may consist of platted lots and unplatted lands. That opinion so holds. In that opinion, however, there was discussion as to what constitutes a block under the statute, reference being made to the authorities cited, and it was said that ordinarily a block is a portion of a city surrounded by streets, and it was held:
“Ordinarily the word ‘block’ as used in G. S. 1935, 12-601, refers to a space in a city, usually rectangular, enclosed by streets and used or intended for buildings.” (Syl. fl.)
In the last cited case we had occasion to observe that over the years statutes for paving city streets had made varying provisions as to real estate subject to special assessment to pay the cost thereof and that many of our decisions had dealt with lands adjacent to railroad rights of way, irregular tracts, tracts not surrounded by streets and other situations not necessary to detail, and that owing to such diversity a review of the statutes and decisions would unduly extend the opinion. And so here. It seems rather clear from appellants’ answer that the city predicated its power to make the assessment complained of by its act in creating'for its purposes a block which did not exist in fact. If it be considered a larger tract owned by appellee actually was a block within the purview of the statute, there is no allegation that was the fact. If we give any attention to statements and admissions made in the briefs and at the oral argument and to what is disclosed by the plat, appellee’s lands did not constitute a block under our decisions.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order overruling defendant’s demurrer to an amended petition in a damage action. The amended petition, in substance, alleged:
The defendant, A. H. Hill Lumber and Investment Company, a corporation, was the owner of a building in the city of Wichita; one room thereof is rented to various individuals and organizations for one or more days at a time for the purpose of conducting public rummage sales; approximately three weeks prior to November 28, 1952, a group of women known as the Wichita Rook and Needle Club reserved this room from defendant for one day for the purpose of conducting such a sale, open to the public; the room is entered through a door on the ground floor, which faces Main street; there is an entranceway in front of the door; its floor is covered with tile which joins the Main street sidewalk; the entranceway is approximately five feet wide and five feet deep; the entranceway on and prior to November 28, 1952, was broken, cracked, sloped and uneven; the rear' portion of the entranceway had settled and broken away from the doorway of the building to the extent of approximately one inch at the south edge and about four inches at the north edge; the front of the entranceway was tilted and raised where it joins the sidewalk along Main street, resulting in a crack approximately one half inch wide; at the front of the entranceway the tile is about two inches higher than the level of the sidewalk at the south end and about one inch higher at the north end; the entranceway was dangerous to life and limb.
The amended petition, in substance, further alleged: On November 25, 1952, snow and ice had collected in the entranceway; it became the duty of defendant to clear and remove said snow and ice, which defendant negligently failed to do; snow and ice covered and concealed the defective condition of the floor and continued to do so on the 28th day of November; defendant knew the defective condition, including the fact that snow and ice had accumulated on the floor; he failed to place the premises in a reasonably safe condition by repairing the defects and by removing the snow and ice before the public was invited to enter; defendant had ample time to place the premises in reasonably safe condition before November 28, 1952; at approximately 9:80 a. m. on November 28 plaintiff entered said room in a careful and cautious manner for the purpose of purchasing goods; by reason of the combined defective condition of the entranceway, as described, and the failure of defendant to warn the public and particularly the plaintiff of the dangerous condition she fell and suffered injuries; defendant knew, or in the exercise of reasonable care could have known of the defective condition and its negligence was the direct and proximate cause of plaintiff’s injuries.
Other portions of the amended petition pertaining to the nature and extent of the injuries sustained are not material on demurrer.
Appellant complains of the trial court’s failure to sustain its mo tion to make the amended petition definite and certain in specified particulars or in the alternative to strike them. The motion was resisted by appellee and was overruled. Appellant argues the motion should have been sustained at least in part, and, therefore, the amended petition must now be strictly construed on demurrer.
The portions of the motion stressed in this court might have been embodied in the first motion to make the original petition definite and certain. It was early held the filing of repeated motions of such character is not favored. They can be filed only with leave of court and such leave rarely should be granted. (Adams v. Lockwood, Englehart & Co., 30 Kan. 373, 2 Pac. 626.) It is true leave to file the second motion was granted in the instant case. That fact, however, does not mean it should have been sustained. Appellant neither appealed from the rulings on any of its motions nor assigned such orders as error in this court. The correctness of the rulings, therefore, is not before us for appellate review.
Appellant has included in its brief a photograph of the entrance-way but states it has done so only for illustrative purposes. Appellee has likewise included a photograph in her brief, but a much larger one, and states she also has done so only for illustrative purposes. Both parties, of course, concede the photographs are no part of the amended petition. Pictures are always interesting and these are splendid examples of the art of photography. At any rate what we have before us is not a demurrer to a picture but a demurrer to an amended petition to which we must look for a description of the entranceway.
Appellant argues the demurrer should have been sustained on the ground that inconsistent and conflicting theories were improperly joined and the amended petition did not state sufficient facts to constitute a cause of action upon a single or definite theory. The two grounds of the demurrer may be treated together. The reasons urged in support of these contentions are the amended petition was based upon both structural defects and defects resulting from the elements. In the first place we fail to find that appellant moved to have the causes of action, if they were distinct, separately stated and numbered. In the next place we think it would have constituted a splitting of causes of action if appellee, under the circumstances, had filed two separate and distinct actions for the same relief. Her theory plainly was, and she alleged, the injuries resulted from a combination of appellant’s failure to repair the structural defects, to remove the snow and ice, before the tenancy began, and. from its failure to warn her, a member of the public, of the concealed defects. We think the demurrer was properly overruled on the grounds alleged.
The real question presented is whether the facts alleged, if established on the trial, render the landlord liable. Appellant argues they do not and relies on the following statement from 32 Am. Jur., Landlord and Tenant, § 818, which reads:
“It is a settled principle of law that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go upon the land or in buildings owes to such persons the duty to have the premises in a reasonably safe condition and to give warning of latent or concealed perils and defects, and there is nothing in the relation of landlord and tenant which changes this rule. At common law, a tenant in full and complete control of premises which he occupies owes the same duty to persons coming there in the course of business or upon his invitation express or implied to keep such premises in a reasonably safe condition as he would if he were the owner, and is prima facie liable for damages proximately caused by defects in or dangers on the premises that reasonably could have been avoided by appropriate care taken by him, irrespective of whose duty it was, as between landlord and tenant, to make such repairs. Such invitees when seeking redress for injuries sustained by them by reason of defects in the premises must seek such redress from the tenant and not from the landlord, in the absence, at least, of any statutory provision making the landlord liable. . . .”
and also leans heavily on DeTarr v. Heim, 62 Kan. 188, 61 Pac. 689, and Bailey v. Kelly, 93 Kan. 723, 145 Pac. 556. In the DeTarr case we held:
“A tenant who has possession and control of premises is ordinarily bound to keep them in such condition that they will be safe for the public, and such tenant is prima facie liable to third persons for damages arising from negligent defects.” (Syl. ¶ 2.) ,
In the Bailey case it was said:
“ ‘It is a rule of the common law, applicable here, that “the occupier and not the landlord is bound as between himself and the public so far to keep the premises in repair that they may be safe for the public.”’ (DeTarr v. Heim, 62 ICan. 188, 192, 61 Pac. 689.)” (p. 731.)
We shall not repeat the facts in those cases as they are fully set forth in the respective opinions. Although there, of course, must be general rules governing the relations of landlord and tenant and concerning their liability to each other and to third parties, each case nevertheless must, of necessity, be decided upon its own particular facts. The facts in the Bailey case were clearly distinguished from those in Turner v. Kent, 134 Kan. 574, 7 P. 2d 513, by the opinion in the latter case. In the Turner case it was held:
“Where a building is leased for a public purpose as a grocery store and meat market to which the public generally is to be invited, and conditions exist at the time of leasing which make it unsafe for the purpose intended, and such matters are known to the owner or landlord at the time of making the lease, the owner or landlord is liable for injuries thereby occasioned to third parties of the invited public.” (Syl. ¶ 2.)
The decision in the Turner case is in complete harmony with principles enunciated in Restatement of the Law of Torts. In volume 2, section 359, of that treatise, we find a statement, together with comments and illustrations of its application. The section and portions of the comments read:
“A lessor who leases land for a purpose which involves the admission of a large number of persons as patrons of his lessee, is subject to liability for bodily harm caused to them by an artificial condition existing when the lessee took possession, if the lessor
“(a) knew or should have known of the condition and realized or should have realized the unreasonable risk to them involved therein, and
“(b) had reason to expect that the lessee would admit his patrons before the land was put in reasonably safe condition for their reception, [p. 971.]
“b. Ambit of liability. The liability stated in this Section is based upon the fact that the lessor knows that the land is leased for the purpose of being thrown open to a considerable number of persons for entry for a particular purpose while in the same dangerous state in which it is when he gives possession to his lessee. Therefore, he is subject to liability only to those patrons whom the lessee admits to the land for that purpose, [p. 972.]
“d. The rule stated in this Section applies to all lessors irrespective of whether the lease is for a rent or other valuable consideration or is a free gift, [p. 973.]
“e. When lessor cannot expect lessee to repair premises. The lessor may have a number of different grounds for believing that the lessee will permit persons to enter the land without so changing the conditions existing at the time of the lease as to make it safe for their entry. The land may be leased for so short a period as to make it unreasonable to expect that the lessee will make any change while using it. It may be leased for a use so immediate that the lessee has no opportunity to make the repairs or alterations necessary to make the land safe for visitors. The known character of the lessee or his lack of the financial resources necessary to make the alterations and repairs, may make it clear that the land is to be used as leased. [Our italics.] [p. 973.]
“f. Effect of lessee’s duty to repair premises. The possessor is subject to liability for any such injuries as are caused to patrons of his lessee by the dangerous condition during the time within which the lessor had reason to believe that it would remain unchanged.” (p. 975.)
In 4 Thompson on Real Property, perm, ed., § 1555, the author, in part, states:
“The landlord is liable . . . when he rents premises for a public or a semi-public purpose which are in an unsafe condition at the time of letting, and such condition is known or could have been known by the landlord in the exercise of reasonable care, and a third person is injured by reason of such unsafe condition.” (p. 26, 28.)
See, also, Webel v. Yale University, 125 Conn. 515, 7 A. 2d 215, 123 A. L. R. 863, anno. 870, and particularly the portion thereof pertaining to “Stores or shops”, p. 873, in which our own Turner case is cited. The author of the annotation indicates the majority view and perhaps the trend of modern authorities is to hold the owner and landlord liable in situations similar to those described in the instant petition.
Appellant further argues the foregoing principles do not apply to the instant case for the reason the alleged defects were not of a sufficiently serious nature to be actionable. The evidence on the trial may not support appellee’s allegations but presently we are not concerned with evidence. If the combined defects, alleged to be the proximate cause of the injury, prove to be as pleaded, we think we would not be justified in concluding, as a matter of law, they are not actionable.
The order overruling the demurrer is affirmed.
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The opinion of the court was delivered by
Parker, J.:
In this action plaintiff seeks a mandatory injunction to compel the defendant, The Hoard of County Commissioners of Ellsworth County, to remove obstructions in a road which are causing water to overflow on her adjacent lands. The appeal is from an order overruling a demurrer to the petition.
The action was commenced on September 9, 1953, by the filing of a petition which, omitting formal allegations of no consequence and its prayer, reads:
“That tire plaintiff is now and has been for more than thirty years last past the owner and in possession of the South Half (S/2) of the Northwest Quarter (NW/4) of Section Two (2), Township Fourteen (14) South, Range Ten (10) West, in Ellsworth County, Kansas, located wholly outside the limits of an incorporated city and being the only land owned by the plaintiff in Sections Two (2) or Three (3), in said township, and during all of said time said land has been used for agricultural purposes and is now being used for agricultural purposes.
“That for more than thirty years prior to the year of 1946, tire defendant maintained as a public road a dirt constructed road on the west section line of plaintiff’s real estate, above described, and along the east section line of Section Three (3), Township Fourteen (14) South, Range Ten (10) West, in Ellsworth County, Kansas; that the natural drainage of surface waters from land lying to the west and southwest of said road as it runs along the west line of the plaintiff’s real estate is in an easterly and northeasterly direction toward the road maintained by defendant as aforesaid; that at all times for the past thirty years prior to the year of 1946, the defendant maintained and kept a ditch and channel along the west side of said road and surface water from the west and southwest drained in its natural course into said ditch and channel, which constituted a well-formed waterway for the conduct of said water along said west side of the road to a ravine near the northeast comer of Section Three (3), Township Fourteen (14) South, Range Ten (10) West, from whence the water flowed in a natural down grade and depression to the northwest and into a water course known as Hell Creek.
“That sometime during the year of 1946, the exact date being unknown to plaintiff, the defendant constructed at the northeast corner of Section Three (3), aforesaid, a block and obstruction and thereby plugged and sealed the channel theretofore maintained for the conduct of the surface waters into the natural drainage toward Hell Creek and prevented the said water from flowing to the north and northwest in its natural course in which it had flowed for more than thirty years prior to 1946 and the defendant thereafter in die year of 1947 elevated the roadway running between the land of plaintiff and Section Three (3), as above described, and during die years of 1947 and 1948 the defendant continued to reconstruct said road and alter the same and in.so doing reconstructed a bridge at a point approximately in die center of the west line of the South Half (S/2) of the Northwest Quarter (NW/4) of Section Two (2), aforesaid, and in reconstructing said bridge enlarged and deepened the same and constructed roadside ditch blocks a short distance north of said bridge on both the east and west sides of the road adjacent to the real estate of the plaintiff and by reason thereof diverted and changed the course of said surface waters and caused the normal the flood waters theretofore draining along the west side of the road into Hell Creek to be diverted to the east side of said roadway through the bridge reconstructed by defendant whereby the water was and is collected in volume along the east side of the road and abutting the real estate of the plaintiff and said water was and is discharged onto the land of the plaintiff with great force and volume.
“That prior to the change and diversion of the water flow from its drainage into Hell Creek as herein stated the land of plaintiff was used for agricultural purposes and had thereon no deep ditches or eroded areas and was suitable for farming purposes; that as a result of the diversion of said water by defendant and the casting of the same in increased force and volume upon the land of the plaintiff deep ditches have been dug thereon by the force of the water and the land has become eroded and continues to become more eroded and the ditches thereon continue to become deeper and the land of the plaintiff is being continually damaged and destroyed and the plaintiff has no remedy at law.
“That the defendant, in changing the flow and the course of the water from the channel constructed along the west side of the road and maintained for many years, as above stated, made no application to the Chief Engineer, Division of Water Resources, to change the flow of said water and to construct water obstructions along said road and the approval of said engineer to said work has never been obtained.
“During the years 1947 and 1948, the exact dates of which the plaintiff is unable to state, on several occasions the plaintiff conferred with the County Engineer of Ellsworth County, Kansas, and the Board of County Commissioners of Ellsworth County, Kansas, with reference to the changes made in the roadway and drainage of the roadway above referred to and the proposed changes therein and at all times the Board of County Commissioners and the County Engineer of Ellsworth County, Kansas, represented to the plaintiff that the changes in drainage and in the roadway would not subject the land of the plaintiff to any additional flow of water nor result in any damage to the above described land owned by the plaintiff; that thereafter at some time during the year of 1951, the exact date of which the plaintiff is unable to state, the plaintiff complained to the Board of County Commissioners and the County Engineer of Ellsworth County, Kansas, of the change in drainage made by the county of said roadway and of the damage being caused to the land of the plaintiff by the discharge of the concentrated water upon her land and the washing away of the top soil and ditching resulting on her land, and that at various times thereafter during the years subsequent to 1951 the plaintiff complained to the County Engineer and the Board of County Commissioners of Ellsworth County, Kansas, of the discharge of water from the entire drainage area in a concentrated flow under the bridge reconstructed by the county in 1948 and the resulting cutting away of her field and of a ditch three to four feet deep and that the Board of County Commissioners informed the plaintiff that they would take the matter under advisement and would attempt to provide for drainage in such a manner as not to cause damage to the plaintiff; that the said Board of County Commissioners has failed and continued to fail to remove road blocks and to open the roadside ditches so as to drain the water from the west side of said road to the north and in the same manner as the water drained prior to 1946.”
Without leveling motions of any kind or character against the foregoing petition the defendant demurred thereto on the overall basis it failed to state a cause of action because it disclosed upon its face the alleged and pretended cause of action therein set forth was barred by the statute of limitations. When this demurrer was overruled the defendant perfected the instant appeal wherein it now contends the propriety of that ruling is the sole issue involved on appellate review.
It may be conceded, as appellant points out, that a pleading which shows on its face the cause of action relied on is barred by the statute of limitations (G. S. 1949, 60-306, Third) is demurrable on the ground it fails to state a cause of action. Many of our decisions so hold. See, e. g., Bradley v. Hall, 165 Kan. 358, 194 P. 2d 943; Pease v. Snyder, 172 Kan. 257, 240 P. 2d 134, and numerous decisions cited in Hatcher’s Kansas Digest [Rev. Ed.], Limitation of Actions, § 189; West’s Kansas Digest, Limitation of Actions, §§ 180, 182. On the other hand it is well to remember the rule is just as well established that unless a petition shows that fact affirmatively no demurrer lies and the bar of the statute must be pleaded to be available as a defense. See American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P. 2d 468; Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194, and numerous other decisions listed in sections 180, 182 of West’s Kansas Digest, and section 188 o£ Hatcher’s Kansas Digest [Rev. Ed.], under the title of “Limitation of Actions.”
However with direct reference to the instant pleading, which as has been previously noted was not subjected to attack prior to the filing of the demurrer, it must also be kept in mind that under the universal rule of construction referred to in Stuckey v. Shultz, 173 Kan. 343, 245 P. 2d 1197, and other decisions to be found in Hatcher’s Kansas Digest [Rev. Ed.], Pleading, §§ 35, 37, also West’s Kansas Digest, Pleading, §§ 26, 34 (1), (3), its allegations must be liberally construed in favor of the pleader and given the benefit of all reasonable inferences.
Having established the principles applicable in determining whether the petition states, or fails to state, a cause of action we turn to our decisions for the purpose of determining the conditions and circumstances under which plaintiffs may maintain a cause of action for injunctive relief in cases where a public agency has constructed a highway in such a manner as to result in flooding the lands of adjacent property owners. There we find Murphy v. Fairmount Township, 89 Kan. 760, 133 Pac. 169, subsequently cited and adhered to in Scott v. Glenwood Township, 105 Kan. 603, 604, 185 Pac. 731, which holds:
“The commissioners of highways are vested with power to exercise their judgment and discretion in planning and constructing a culvert. But when such culvert has been constructed with an opening so insufficient that surface water is thrown back upon the land of an abutting owner to his repeated damage, rendering the structure a continuing nuisance, it is the duty of such commissioners, upon proper notice and demand, to abate the same by remedying the defect, and upon failure they will be required so to do by judicial action.” (Syl.)
Also Kansas City v. Frohwerk, 10 Kan. App. 120, 62 Pac. 432, recently cited and reapproved in Henderson v. Talbott, 175 Kan. 615, 623, 266 P. 2d 273, where it is held:
“Where a city so grades, paves, curbs and gutters its streets as to collect the surface-water from a large area and discharge it upon the property of one of its property holders, through a failure to provide suitable outlets for said water, the city has a legal right and it is its legal duty to terminate the cause of injury, and the damage thereby caused is a continuing damage.” (Syl. f 1.)
And in the opinion, in distinguishing Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, relied on by appellant as sustaining its position the cause of action set forth in the petition now under consideration was barred by the statute of limitations, said:
“. . . We think the distinguishing principle in these cases is suggested in the brief of the defendant in error, that in order to charge one as a continuing wrongdoer he must have a legal right and be under a legal duty to terminate the cause of injury. . . .” (p. 123.)
Turning to the petition we have no difficulty in concluding it contained allegations which, if given the benefit of the inferences to which it is entitled, bring it squarely within the scope of the rule enunciated in the two decisions from which we have just quoted. Under such circumstances it cannot be said it affirmatively appears from the face of the petition that the cause of action therein pleaded was barred by the statute of limitations. This is so, we may add, regardless whether appellee can support the facts pleaded by the degree of proof required to sustain his cause of action or the appellant plead and establish the defense on which it now relies as the foundation for its demurrer. Therefore we are constrained to hold the trial court did not err in overruling the demurrer to the petition.
In reaching the conclusion just announced we have rejected not overlooked, strenuous contentions advanced by appellant to the effect that if this were a case where appellee was entitled to recover damages, and he was basing his right to relief on that premise his cause of action, under the confronting facts and circumstances as pleaded, would be barred by the statute of limitations. We are not disposed to here dwell at' length on the arguments advanced in support of contentions on this point. It suffices to say that in our opinion they are effectively answered by what is said and held in the very recent decision of Henderson v. Talbott, 175 Kan. 615, 266 P. 2d 273, particularly pages 620 to 624, incl., of the opinion, handed down by this court on January 23, 1954, approximately one month after the filing of appellant’s excellent brief in the case at bar. In all fairness to counsel preparing and filing that document it should perhaps be stated, that on the basis of the logical arguments therein advanced, we are convinced appellate review of the instant ruling would not have been necessary if the decision in Henderson v. Talbott, supra, had been available at that time.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, C. J.:
This is an action for damages to an airplane loaned by plaintiff to the appellant Winger to fly from Manhattan to Clay Center which plane was seriously damaged on the trip alleged to have resulted from the negligence of defendant. After the pleadings were filed the parties waived a trial by jury and the case was tried by the court resulting in a judgment for plaintiff. Defendant has appealed.
After the evidence was in and briefs furnished and considered the court filed its memorandum opinion which tells the story of the case as follows:
“The evidence in this case discloses that on the 25th day of May, 1951, plaintiff was the owner and in possession, of a 1951 Piper-Pacer, MC7605K, Serial No. 20-420, 4-place, Lycoming, 125 horsepower engine.
“That on said day defendant, Marion Winger’s personal airplane was undergoing repairs at Woods Airport, Clay Center, Kansas. That said defendant was anxious to ascertain how the repair job on his said personal airplane was progressing; and on said day requested from plaintiff the use of its said Piper-Pacer 125 in order that defendant Winger could fly to Clay Center and look at his plane. That plaintiff, through its duly elected officer, Lloyd Henderson, did grant said permission to defendant as requested; that no contract of rental was entered into and no rental was to be charged, nor was charged.
“That defendant, Marion Winger, took the plaintiff’s airplane and flew to Clay Center, Kansas, from plaintiff’s airport on Plighway 24 and 40 east of Manhattan, Kansas. That defendant, Marion Winger, and William Hauserman, Jr., sat side by side behind dual controls in said airplane that a down wind landing was made at the Woods Airport in Clay Center, Kansas, and the plane was badly damaged.
“The court finds as follows:
“1. Defendant Winger was the bailee in this transaction.
“2. The bailment was for the sole benefit of the bailee.
“3. Defendant Winger was a minor under the age of 21 years, to-wit: of the age of 20 years, 8 months, and 2 days, and was unmarried, on the 25th day of May, 1951, the date the airplane was damaged.
“4. The airplane, subject of the bailment, was returned to plaintiff in a damaged condition.
“5. Defendant Winger was negligent, in fact, the evidence discloses he failed to exercise ordinary care and diligence under tire circumstances, notwithstanding the fact he was charged with the exercise of a high degree of care.
“6. Plaintiff had good reasons to believe defendant capable of contracting and was misled by defendant Winger’s implied misrepresentations as to his age, and from his having engaged in business and handled his business affairs as an adult.
“7. The bailment contract cannot be disaffirmed by defendant Winger as the defense of infancy is not here available.
“8. The airplane was damaged to the extent of $3,900.00.
“9. Plaintiff should have judgment against defendant Winger for $3,900.00 and for the costs of this action.”
A journal entry in harmony with this opinion was filed in which the court rendered judgment for plaintiff for $3,900.00 and costs of the action. The defendant Winger filed a motion for a new trial on the grounds: (1) Erroneous rulings or instructions (sic) of the court; (2) that the verdict (sic), report (sic) or decision is in whole or in part contrary to the evidence. This motion was duly considered by the court and overruled.
Counsel for appellant Winger in their brief in this court have not complied with our rule No. 6(3) (b )•, pertaining to briefs by setting out, “A statement of the question involved, or separately numbered statements of the several questions involved, in very brief and very general terms, to enable the court to acquire immediate comprehension of the nature of the controversy.” However, from the running discussion in appellant’s brief we understand that appellant makes two main contentions. First, that the evidence does not disclose that the plane was damaged by appellant’s negligence; and second, that his request to borrow the plane and the loan of it by plaintiff constituted a contract which he could disaffirm because of his minority, and that he did disaffirm the contract after the damage to the plane and before the filing of this action.
Before answering these questions a general statement should be made. Plaintiff is a corporation; Lloyd Henderson, a licensed pilot who had 15 years flying experience, is its president and general manager; all of the stock is family owned; it operates an airport on the city limits of Manhattan where it conducts a flying service; it has hangar space for 15 airplanes, one and sometimes two being leased by students; it rents the hangar space, sells gas and oil and accessories but has no facilities for the repair of damaged planes.
Charles A. Wood, an airplane mechanic, operates Woods Airport at Clay Center. It has a north-south runway 1,300 feet long, and others. Wood had tools and facilities for repairing airplanes. He testified he had been an airplane mechanic for 22 years and at the time of the trial was employed at Roeing Aircraft at Wichita in the engineering department checking blueprints and revisions; that he had been a pilot for 22 years and holds an official position, that of maintenance aircraft inspector, with the Civil Aeronautics Administration.
William J. Hauserman, Jr., was made a party defendant and was served with a summons; he did not file an answer and no defense was made for him. He was called into military service on January 3, 1952. The day before he was ordered to leave his deposition was taken by plaintiff at Junction City and later introduced in evidence. At the trial which began December 1, 1952, plaintiff did not seek judgment against him.
Winger kept his plane, a Cessna 140, at plaintiff’s airport for nine months prior to May 25,1951. On a previous occasion he had taken the plane to Woods Airport in Clay Center for repairs, flying it there himself. About May 20, 1951, Winger told Henderson that he was going to have to have his plane overhauled; they agreed to send it to Woods Airport at Clay Center; Winger flew it over there. Woods told Winger that when the repair work was done he would notify him or Henderson.
On the afternoon of May 25, 1951, Winger drove to plaintiff’s airport with Hauserman to see Mr. Henderson. Hauserman stayed in the car; Winger went and talked to Henderson who was there doing some work; Winger told Henderson he wanted to go to Clay Center and see about the progress of the work on his plane. Neither of them had been notified that the repairs had been completed. Winger asked permission to use plaintiff’s 1950 Piper-Pacer and go to Clay Center and plaintiff consented. Winger and Hauserman proceeded to the location of the airplane and taxied out for a normal take-off. The plane had dual, controls and could be operated from either seat. When they started to get into the plane Hauserman, who had no pilot’s license but some training for one, suggested that Winger get into the seat on the left side of the plane where the pilot normally sits but Winger told Hauserman to get in that seat and he got in the seat on the right-hand side of the plane. There is some conflicting evidence as to who flew the plane.. Winger testified that he never touched the controls but Hauserman testified that he thought Winger flew it a part of the time for he definitely remembered that Winger spoke about how nicely it handled. When the plane reached Clay Center the wind was blowing from the north at about 25 miles an hour; the windsock at the airport was in order and was so extended that it indicated a rather strong wind from the north. Notwithstanding this the plane was flown so as to come into the runway from the north at a speed of about 60 to 70 miles an hour. This, with the wind, made it impossible for them to stop the airplane on the runway. The result of that was they ran through a wire fence to a short distance south of the runway, Mr. Wood testified they ran through 3 fences, and the plane turned over. Neither of the occupants were seriously injured but the plane was severely damaged, so much so that it was thought it was not worth-while to try to repair it. There is testimony it was worth $5,000.00 to $5,400.00 prior to its damage and $1,000.00 afterwards. The wreckage was sold for $1,000.00. Defendants offered no testimony respecting the damage of the plane. There is no contention now that the judgment of $3,900.00 is excessive. Soon after the plane was damaged Winger called Henderson and told him he had a nose-over. Henderson promptly went to Clay Center in another plane. When Henderson reached there Winger told him, “That it would be the last time he borrowed anybody’s airplane to fly.” Winger said that he would repair the plane and suggested that Henderson telephone Wichita to see what it would cost ,to repair it. It is not disclosed whether that was done. Winger offered to pay Henderson $1,500.00, or one-half, if Hauserman would pay the other half of the repairs. It appears these suggestions were not accepted. The next day Winger told Henderson he would not pay anything because he was a minor. It appears that in the meantime he had talked to his father in Johnson or to an attorney there.
Reverting to the questions presented here; first, whether Winger was guilty of any negligence. It is argued that Hauserman was flying the plane and that he was responsible for the negligence. This was Winger’s trip, not Hauserman’s. Winger had a pilot’s license to fly a plane, Hauserman did not. It was Winger who told Hauserman to get in the pilot’s seat. There was an abundance of testimony that it is dangerous and decidedly careless to attempt to land a plane with the wind; that it should be landed against the wind, that this is one of the first things that is told to a person who is taught to fly an airplane. Winger is the man who borrowed the plane; he had a duty of his own to see that it was not landed contrary to proper flying methods and not in a way that was decidedly dangerous. This point raised by appellant has no merit. The trial court correctly found, “Defendant Winger was negligent, in fact, the evidence discloses he failed to exercise ordinary care and diligence under the circumstances notwithstanding the fact he was charged with the exercise of a high degree of care.” We think the trial court also correctly found defendant Winger was a bailee in this transaction and that the bailment was for his sole benefit.
Appellant’s next and principal contention is that he was not bound by his bailment contract resulting from his borrowing the plane for his own use because he was a minor. The evidence discloses that the court found that on the day of this tragedy Winger was of the age of 20 years, 8 months and 2 days. He had therefore not reached his majority. G. S. 1949, 38-101. Two other sections of our statute need to be quoted: G. S. 1949, 38-102 reads:
“A minor is bound not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract and remaining within his control at any time after his attaining his majority.”
It may be conceded that his contract of bailment here was not a necessity. Probably he could have telephoned Mr. Wood and found out the progress of the repairs on his plane. Perhaps his notice to disaffirm was sufficient but he did not restore to the other party the property he received. Perhaps his answer to that would be there was nothing to restore although he destroyed property of the value of $3,900.00 and at first agreed to pay it.
The next pertinent section, G. S. 1949, 38-103, reads:
“No contract can be thus disaffirmed in cases where, on account of tire minor’s own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party had good reasons to believe the minor capable of contracting.”
This defense of minority was raised in his answer. Defendant alleged that he was a minor of the age of 20 years on the 25th day of May, 1951, and that he attained his majority on the 23d day of September, 1951, and disaffirmed any contract, either express or implied, that might exist between him and plaintiff. Plaintiff in its reply states:
“That if the defendant was a minor on the 25th day of May, 1951, such fact was unknown to this plaintiff; that defendant, Marion Winger, engaged in business as an adult, and plaintiff had good reason to believe die defendant, Marion Winger, to be of contracting age. That by implied misrepresentations, from defendant having engaged in business as an adult, he is bound by his contracts and torts arising out of contracts either express or implied.”
On this point plaintiff’s evidence disclosed: That appellant Winger was a senior at Kansas State College; that he carried a bank account of his own since he had been in college, even before that when he was in high school; that he engaged in farming and cattle business with his father and received one-fourth of the net proceeds of the business; that he once told Mr. Henderson he was farming 300 acres of wheat; that he had purchased two automobiles from Ralph Stubblefield, an automobile dealer in Manhattan, one in 1949 and the other in 1950, in each case giving his personal check and taking title in his own name; that he also bought a Cessna 140.airplane. For nine months he had rented a hangar for his plane from .plaintiff and purchased oil and gas and had some other expense connected with his plane; that he gave his personal check twice a month to plaintiff for such charges which checks had always been honored; that he never told Henderson that he was a minor; that he looked and acted like a young man who had reached his majority, and Henderson believed him to be of mature age and transacted business with him as such for nine months. None of this evidence was controverted.
Clarence Winger testified that his son, Marion Winger, was a student associated with him in business; that he gives the boys a share of the wheat, and on the cattle business each takes a fourth; the boys do the work.
During the trial attempt was made on defendant’s behalf to show that Henderson had seen a doctor’s report of a physical examination of him in connection with some of the papers filed which authorized a pilot’s license be given him which gave his birth date. Henderson testified that while he had seen a doctor’s medical report it was not a paper that he was required to pass upon. In fact, he did not examine or pay attention to its contents. If this evidence was of any value it could amount to nothing more than conflicting evidence as to Henderson’s knowledge of Winger’s age. It was for the trial court to determine what weight, if any, it should have. With respect to this phase of the question the trial court, after considering all evidence pertaining thereto, found:
“Plaintiff had good reasons to believe defendant capable of contracting and was misled by defendant Winger’s implied misrepresentations as to his age, and from his having engaged in business and handled his business affairs as an adult.”
There is ample evidence to sustain this finding.
We have considered all the arguments of counsel and examined all authorities cited and find no error in the record. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover a sum of money claimed to be due under the contract later mentioned. The defendants’ demurrer to plaintiff’s amended petition was overruled and they appeal.
Under date of February 28,1945, the defendants, as parties of the first part, entered into a contract with plaintiff, as party of the second part, containing four “Whereas” clauses and thirteen “contractual” paragraphs, the gist of which follows: In the “Whereas” clauses, it was stated that first parties were erecting a drive-in theatre on a highway southwest of the city of Wichita and planned to operate it and desired to employ second party as permanent booker and buyer of films; that second party had for many years owned and operated motion picture theatres and was in a position to be of valuable service and was willing to assume the duty of buying and booking pictures for the theatre, and it was agreed:
1. First parties hired second party as buyer and booker of films.
2. Pertained to matters not now material and that it was understood duties of second party were limited to booking and buying films.
3. Second party was to have full, complete and sole authority to contract all pictures for the theatre and he agreed to use his best efforts and conscientiously select films that would produce the greatest revenue for the theatre.
4. Second party was allowed $12 per week as necessary expense in the employment of a booking agency in Kansas City to assist him in order to hold to a minimum necessary traveling expense of second party.
5. First parties were to pay second party as compensation for his services five percent of the box office receipts, less designated taxes.
6. Provided for keeping of books and records by first parties and access to second party for purposes of inspection.
7 and 8. Provision for a corporation and not of present importance.
9. Second party agreed not to erect a drive-in theatre in a specified part of Sedgwick county, and first parties agreed not to expand their drive-in theatre business in specified territory “during the term of this contract.”
10. Second party to have no voice in the management of the theatre other than the booking and buying of films.
11. Provisions that if either of first parties desired to sell, who should be possible purchaser.
12. Provision that contract binding upon the parties, their heirs, successors and assigns so long as second party owned theatres in the city of Wichita “and so long as the second party is living and is physically and mentally capable of performing the services hereunder.”
13. Although stated at length the substance was that if first parties violated the contract with reference to employment it would be difficult to ascertain the damages, or if they should violate their agreements as to expanding their business, or if second party should violate his agreements as to erection of a theatre in the prohibited area, it would be difficult to ascertain the damages, and the parties agreed with each other that in event of violation in either of said events the damages should be determined as $10,000.
On September 12, 1952, plaintiff, the party of the second part in the above contract, commenced an action alleging violation thereof and claiming the sum of $10,000 as liquidated damages. On defendants’ motion all reference to liquidated damages was stricken from the petition, and thereafter the plaintiff filed his amended petition, hereafter referred to as the petition.
In his petition, plaintiff alleged execution of the contract, a .copy of which was attached to the petition, and that under its terms he was to have full, complete and sole authority to contract all motion pictures for the theatre, and that up to February, 1952, he performed in a proper manner each and every duty devolving upon him under the contract; that on February 7, 1952, defendants notified him that thereafter they would no longer comply with the contract of employment, and had since booked all motion pictures for their theatre either directly from film distributors or through booking agents other than plaintiff; that notwithstanding" such breach of the contract plaintiff always had stood ready, willing and able to perform all his obligations under the contract. Allegations as to the amount of business done in the years 1950 and 1951 are set forth and that the business has been increasing in gross volume; that plaintiff’s expectancy was 17.78 years and his prospective earnings were $106,204.29 and he had been damaged in that amount for which he prayed.
Defendants demurred to the petition on the ground no cause of action was stated and on the further ground that the damages sought were so wholly speculative, uncertain and conjectural they failed to form a basis for recovery. As has been noted this demurrer was overruled and defendants appealed. They specify error in the particulars hereafter discussed.
In the statement of their first contention, appellants say that the contract is unenforcible as it lacks consideration and mutuality. They present no argument as to lack of consideration and that phase will not be discussed. Insofar as lack of mutuality is con cerned the argument is brief. They direct attention to the clause of the contract as to liquidated damages and argue that under that clause plaintiff would be under no liability — that his liability thereunder was in the event he erected a theatre in the prohibited area. Conceding it to be true that the clause as to liquidated damages is limited, that clause does not pretend to release plaintiff from all other liabilities under the entire contract. Appellants quote excerpts from the following cases, on the general proposition that both parties must be bound to duties under the contract, lacking which there is want of mutuality.-' We have examined these cases and find that on the facts they are distinguishable and not decisive here.
In Swart v. Huston, 154 Kan. 182, 117 P. 2d 576, it was held there was no contract covering duration of employment. In Grow v. Davis, 110 Kan. 214, 203 Pac. 683, the plaintiff was under no obligation to perform. In Fitzstephens v. Whan, 113 Kan. 650, 216 Pac. 269, the defendant agreed to make payments to the plaintiff, but plaintiff did not agree to do anything. In Van Deren v. Heineke & Co., 122 Kan. 215, 252 Pac. 459, it clearly appeared that plaintiff was under no duty to perform, and the same may be said for Sharpless v. J. B. Kirk Gas & Smelting Co., 128 Kan. 722, 280 Pac. 788. We have heretofore analyzed the contract. It is not debatable but that each party agreed with the other to perform specified duties for a specified time; that none of the provisions of the contract gave either party any option to refuse performance, but on the contrary bound each to perform, and it may not be said the contract lacked mutuality of obligation.
Appellants next contend they had the right to discharge appellee at any time they chose. This contention is based solely on the proposition that the twelfth paragraph of the contract provided for an indefinite hiring, and that in such circumstance the hiring is one at will and either party may terminate the contract and authorities to that effect are cited. They need not be analyzed for it may be conceded for present purposes that if the premise is true, the conclusion is correct. In our opinion the premise is not true. The contract perhaps could have been more artfully drawn but it definitely provided for the performance of duties by the appellee for the benefit of the appellants so long as appellee owned and controlled theatres in the city of Wichita and as long as he was mentally and physically capable of the performance of his duties. These provisions did fix a time when the contract would terminate, and though it may be conceded that the happening of either event was a contingency the date of which could not be foretold when the contract was made and in that sense was indefinite, that it was otherwise a definite hiring for the term fixed is not open to debate. We shall not pursue the subject of contracts of hire, their duration, and the right of the employer to discharge the employee or the righl of the employee to quit as the discussion would cover a field not involved here, in view of the contract provisions. As we view the matter the only question is whether the fact that termination of the contract is dependent on what may be termed a contingency, leaves the terms of employment so indefinite it may be said the hiring is at will. We think that may not be said, in view of our decision in Pierson v. Milling Co., 91 Kan. 775, 139 Pac. 394, where a situation much more favorable to the employer existed than obtains here, and where it was held:
“A contract by which an employer agrees to furnish an injured employee employment for life is not too indefinite for enforcement, although it makes no provision for the kind of work to be done or the amount of compensation.” (Syl. If4.)
And as bearing on the question see Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 205 P. 2d 914, syl. ¶ 5.
And finally, appellants contend that the contract is unenforcible because the damages appellee seeks to recover are speculative and conjectural and there is no reasonable basis on which they can be predicated and that the petition therefore is demurrable. The gist of appellants’ argument is that profits which are so conjectural that they cannot be measured by the usual rules of evidence to a reasonable degree of certainty are not recoverable, and attention is directed to many situations where, perhaps, the operation of the theatre may be suspended, or the business may not prosper in the future, and other circumstances which the evidence might develop but which are lacking in the allegations of the petition. It is true that the damages which apjpellee seeks are predicated on a percentage of the gross receipts, less taxes, and in that sense the appellee seeks to' recover for future profits, but we need not review authorities and decisions where for one reason or another, a recovery was denied. We are presently concerned with the alleged facts that the theatre business in question had been established, was in operation, and had been taking in gross receipts in which appellee was entitled to participate. If on trial the appellee sustains the proposition that the business had been in successful operation for such time as to give it permanency and that it was making earnings which could be reasonably ascertained, and appellee was denied his interest by the wrongful acts of appellants he may recover as the proof may show (States v. Durkin, 65 Kan. 101, 68 Pac. 1091) for where the business is not a new or untried one and has been established to such an extent that a safe basis can be found on which to estimate them, anticipated profits may be allowed as damages on breach of the contract (Gas Co. v. Bailey, 77 Kan. 296, 94 Pac. 258). The rules last noted were followed in McCracken v. Stewart, 170 Kan. 129, 136, 223 P. 2d 963. We are not presently concerned with any difficulties appellee may have in making his proof, nor with any possible defenses the appellants may plead and prove, but only with the allegations of appellee’s petition. We shall not discuss appellee’s contention that in any event if the contract was made by appellants and breached by them, he is entitled to recover nominal damages. Appellants’ contention that the petition is demurrable for the reasons last discussed cannot be sustained.
It follows that the trial court’s ruling on the demurrer must be and it is sustained and its judgment affirmed.
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from an order overruling a demurrer to plaintiff’s amended petition, as amended, and the second appearance in this court (See Donie v. Associated Co., Inc., 173 Kan. 753, 252 P. 2d 609) of an action involving a contract and an accounting of the profits of the defendant corporation.
Although in a sense the issues now to be reviewed are dependent upon later events and proceedings it is important that readers of this opinion understand the facts, circumstances and conditions governing our decision in the first appeal. They are clearly and succinctly set forth in the opinion of that decision where they can be found by reference if required for informative or other purposes essential to the disposition of this appeal and hence need not be repeated.
After the first appeal, holding that the trial court should have sustained a demurrer to the first amended petition, plaintiff filed a motion in the court below asking that the defendants be required to permit him to inspect, or in lieu thereof give him copies of, the minute books of the corporation disclosing the names and addresses of its directors, the powers delegated to the president and general manager in the matter of hiring employees, and the authority granted Leo B. Bowman in such capacity to employ plaintiff, as well as other employees, and other information of less importance. When this demand was overruled plaintiff filed a second amended petition, whereupon defendants moved to strike that pleading from the files. Plaintiff then filed a second motion asking that defendants be required to furnish him with the information requested in his first motion. This motion was also overruled. Thereupon, after some colloquy between court and counsel, also rulings with respect to the motion to strike the second amended petition which are of little importance; plaintiff asked leave and obtained permission to file a second amended petition, as amended. This pleading, omitting its formal averments and prayer reads:
“Second.
“Plaintiff is informed and believes, and therefore alleges as a fact, that the defendant, Leo B. Bowman and E. C. Bowman are husband and wife, and together with Merie Hollow, were the original incorporators of the defendant corporation, and said incorporators were the sole and only owners of the common stock of said corporation and at all times herein material, the said Leo B. Bowman owned more than ninety per cent (90%) thereof; that the said Leo B. Bowman, E. C. Bowman and Merie Hollow were, by said stockholders, at a meeting thereof called for that purpose, by resolution of the minutes of the meeting of said stockholders, elected as the Board of Directors of said corporation.
“Third.
“Prior to the 12th day of October, 1950, the exact [sic] being unknown to plaintiff but well known to the defendants and each of them, the Board of Directors at a meeting duly called for that purpose, and as provided by the ByLaws of said corporation, selected, elected and employed said Leo B. Bowman as the president and general manager of said corporation, and by such resolution, authorized, empowered and instructed the said Leo B. Bowman as its authorized agent, president and general manager, to seek the employment of skilled mechanical and industrial engineers and inspectors for the purpose of manufacturing aircraft parts and accessories, and authorizing the said president and general manager to pay such skilled worker or workers the sum of Four Hundred Fifty Dollars ($450.00) per month, and one-sixth (1/6) of the net profits of said corporation at the end of one year from the date of such employment.
“Fourth.
“The defendant, Leo B. Bowman as such duly authorized agent, president and general manager did, on the 12th day of October, 1950, enter into an oral contract with this plaintiff whereby and under the terms of which, defendants employed the plaintiff as chief inspector for the defendant, Associated
Co., Inc., and the said Leo B. Bowman for a period of one year from said date, and agreed to pay plaintiff a salary of Four Hundred Fifty Dollars ($450.00) per month, payable semi-monthly on the 5th and 20th day of each month thereafter during said period. It was further agreed that at the end of one year from the 12th day of October, 1950, in addition to the aforesaid salary, defendants would divide and pay the net profits of the defendant, equally between the said Leo B. Bowman, president and general manager of the defendant; this plaintiff, W. W. Grissamore, Láveme Nance, F. W. Jones and Mrs.-McGrady, employees of said defendant.
“Fifth.
“Plaintiff has and did perform each and every, all and singularly, the duties and obligations devolving upon him as chief inspector of the said defendant, Associated Co., Inc., and the said Leo B. Bowman, and performed each and every duty and obligation required of him under the terms of said contract of employment, for one year from the date of plaintiff’s employment as aforesaid. The defendant, Associated Co., Inc., paid to this plaintiff, the sum of Four Hundred Fifty Dollars ($450.00) per month, semi-monthly as herein alleged, foi twelve (12) months from the 12th day of October, 1950 but has failed, neglected and refused to account to this plaintiff for the net profits of said defendant, Associated Co., Inc., or pay him one-sixth (1/6) of the net profits of said corporation, or any part thereof, although the defendants prospered during said period of time and made a net profit or profits of from $350,000.00 to $400,000.00 during said period.
“Sixth.
“Plaintiff made demand upon the defendants for an accounting for the payment of his share of the net profits of said defendant, Associated Co., Inc., as above described, in accordance with the terms of the aforesaid oral contract of employment, said demand being made upon the said Leo B. Bowman on or about the 12th day of October, 1951, and said demand was refused and denied.
“Seventh.
“Plaintiff has no adequate remedy at law and is entitled to an accounting by the defendant, Associated Co., Inc., which will accurately fix and determine the profit or profits of said defendant, Associated Co., Inc., for the year beginning the 12th day of October, 1950, and ending the 11th day of October, 1951, and for a judgment for one-sixth (%) of the net profits found to have been made by said defendants (letter V stricken on defendants’ motion) during said period of time, with interest at six per cent (6%) per annum on the amount found to be due plaintiff, from the 12th day of October, 1951.”
Soon after the filing of the foregoing pleading it was attacked by the defendants with a motion to strike and a motion to make definite and certain. The portion of the motion asking that the letter “s” be stricken from the word defendants as it appears in the Seventh paragraph thereof, although it was sustained, is of little importance and requires no further attention. The portion asking that the petition be made more definite and certain is of more consequence in view of the fact the trial court’s overruling thereof is challenged on appeal. It reads:
“Come now the defendants and each of them and move the court for an order requiring the plaintiff to make his second amended petition, as amended, definite and certain in the following particulars, to-wit:
“1. By setting forth what is meant by the term ‘net profits’ as used in paragraphs Third, Fourth, Fifth, Sixth, Seventh and in the prayer.
“2. By stating whether or not the acts alleged in paragraph Fourth to have been performed by the defendant Leo B. Bowman as agent, president and general manager were performed pursuant to the authorization alleged in paragraph Third to have been given to him by the corporate defendant.
“3. By stating which defendant was by the terms of the agreement alleged in paragraph Fourth supposed to pay $450.00 per month to tire plaintiff.
“4. By stating which ‘said defendant’ is alleged in the interlineation in paragraph Fourth to be the employer of the employees therein listed.
“5. By stating whether the demand alleged in paragraph Sixth to have been made upon Leo B. Bowman was made upon said Bowman in his individual capacity or as president and general manager of the corporate defendant.”
Following the lower court’s refusal to make the second amended petition, as amended, more definite and certain defendants demurred to that pleading on the ground it failed to state facts sufficient to constitute a cause of action. Thereafter, and prior to any ruling on such demurrer, plaintiff’s motion to dismiss the action as to defendant Leo B. Bowman, without prejudice, was sustained. Subsequently the demurrer of the corporation, the sole remaining defendant, was overruled and it was given 20 days in which to answer. Instead of answering it perfected the instant appeal wherein, under proper specifications of error, it claims the trial court erred (1) in overruling its motion to make tire second amended petition, as amended, more definite and certain and (2) in overruling its demurrer to such pleading.
Turning to appellant’s first claim of error it is to be remembered that the cause was dismissed as to Bowman prior to the ruling on the demurrer. In view of such action it is certain that from that time on appellant could no longer be heard to say it did not comprehend or understand the claims asserted by appellee, or the party to whom they were intended to have reference, in portions of the pleading challenged by grounds 3, 4 and 5 of the motion to malee more definite and certain. Under such circumstances error of the trial court, if any, which we do not concede, in overruling the last three grounds of the motion did not result in prejudice to the substantial rights of the appellant and therefore, under the requirements of our statute (G. S. 1949, 60-3317), would have to be disregarded on appellate review in any event. Even so we are not averse to disposing of contentions advanced by appellant respecting the propriety of the ruling on such motion.
As we read the second amended petition, as amended, and with particular reference to grounds set forth in the motion to make more definite and certain we have little difficulty in concluding that as to: Ground I, the term “net profits” as used therein has a clear and definite meaning, i. e., profits remaining to the corporation after payment of all its legal obligations. Ground 2, the allegations of the Fourth paragraph, when read in connection with the Third paragraph of such pleading disclose and advise appellant that Bowman entered into a contract with appellee as the duly authorized agent of the corporation, whereby appellee, at least so far as his employment was concerned, was employed by, and agreed to work for, the corporation pursuant to and in conformity with the authorization theretofore granted by its board of directors. From the standpoint of the sufficiency of pleadings we believe this conclusion is especially warranted in a case where — as here — the record discloses that the appellant itself, as has been heretofore pointed out, resisted all efforts on the part of appellee to obtain the minute books of the corporation and by that means obtain information which otherwise might have enabled him to plead the authority granted Bowman by the corporation with more definiteness and certainty. Grounds 3, 4, and 5, the allegations of such pleading • charging that Bowman, as the corporation’s duly authorized agent, employed appellee, followed by allegations in the Fifth paragraph thereof to the effect appellee fully performed all the terms of the contract, that the corporation paid him the sum of $450.00 per month semi-monthly for such services for twelve months, the full term of such contract, and failed, neglected and refused to account to him for one-sixth of its net profits, are to be construed as stating that the corporation was to pay appellee for his services; that the corporation, not Bowman, was the employer of the employees named in the Fourth paragraph; and that the demand for an accounting made upon Bowman was made upon him in his capacity as president and general manager of such corporation. With the petition so construed it necessarily follows the trial court properly overruled the motion to make the second amended petition, as amended, more definite and certain and that appellant’s claim of error to the contrary cannot be upheld.
The gist of the primary contention made by appellant in support of its second assignment of error is that in the first appeal this court ruled that tire present appellee must, in order to allege a cause of action, plead essential allegations to establish Bowman’s agency and authority to bind the corporation and that he has failed to comply with that mandate. Most of its contentions in support of this position are predicated upon the premise that the ruling of the trial court on its motion to make the amended petition, as amended, more definite and certain was erroneous and therefore such pleading must be strictly construed. Heretofore we have demonstrated the motion lacked merit and was properly overruled. It follows the pleading is not subject to any such construction and that all contentions based on that premise are fallacious and must be disregarded. The rule of strict construction on demurrer has no application where a pleading, or such portion thereof as is attacked by a motion to make more definite and certain, is sufficient and the motion is properly overruled. (See Powell v. Powell, 172 Kan. 267, 239 P. 2d 974; Lawellin, Admr., v. Eakins, 174 Kan. 319, 255 P. 2d 615.) Moreover we have definitely indicated our view that the involved pleading as amended states the contract, at least so far as appellee is concerned, was made and entered into pursuant to the authorization alleged in the Third paragraph of such pleading. We now hold, after an examination and analysis of such paragraph, that its allegations, which we pause to note, are new and were not to be found in the pleading passed upon in Donie v. Associated Co., Inc., supra, comply with the requirements of that decision and contain the allegations essential to establish Bowman’s agency and authority to enter into the contract with appellee on behalf of the appellant corporation. Thus construed we have little difficulty in concluding the petition now contains allegations sufficient to state a cause of action and that the many matters appellant seeks to have adjudicated on the basis of the trial court’s ruling on the demurrer, which it may be stated we have purposely refrained from mentioning in order to avoid saying anything which might prejudice either of the parties in a trial on the merits of the cause, must be raised by appellant as defenses by way of answer. Whether appellee can sustain the burden of proving the allegations of his petition or appellant establish the defenses with respect thereto, which it now seeks to argue in connection with questions pertaining to the propriety of the ruling on the demurrer, are not matters with which we are presently concerned. All we are now warranted in holding— as we do — is that under the facts, conditions and circumstances set forth and described in the second amended petition, as amended, the trial court did not err in overruling the demurrer to that pleading.
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This was an action to enjoin the collection of an alleged illegal special assessment against plaintiffs land. The appeal is from an order overruling plaintiffs motion for judgment on the" pleadings.
The city of Wichita, under authority of G. S. 1949, 26-201, con demned a thirty-foot strip of plaintiff’s property for street widening purposes. The commissioners in condemnation awarded her the sum of $4,500 for the land so taken, and then, by virtue of a city ordinance creating a sole benefit district of plaintiff’s land so remaining, under G. S. 1949, 26-202, assessed such sum of $4,500, together with the costs of the condemnation proceeding in the amount of $445.92, against such remainder — hence this lawsuit.
In view of the only disposition which we think can be made of this appeal, a brief summary of the pleadings will be sufficient.
Following a recital of the various steps in the condemnation proceeding, plaintiff’s petition alleges that the creation of a benefit district solely out of her remaining property is in violation of the very ordinance in question which provides that only a “just portion” of the cost of widening the street should be charged against the remainder of her property; that no part thereof was assessed against the city at large; that the condemnation commissioners did not follow the method of assessing benefits prescribed by G. S. 1949, 26-202; that there is and will be no benefit accruing to plaintiff or the remainder of her property by reason of the taking of the land in question; that there are other property owners who sought the widening of the street who are materially benefited; that the creation of the alleged benefit district consisting of only the remainder of plaintiff’s property is imaginary and fanciful, and that the action of the commissioners in assessing the total award and costs of the proceeding against her remaining property, instead of only a just portion thereof, is likewise unfair, unjust, arbitrary, capricious and discriminatory, and without any reason or foundation in fact or in law.
The answer of defendant city and its officials admits the physical facts of what was done in the condemnation proceeding as alleged in the petition, but denies the assessment in question is in violation of the ordinance or any statute; denies that no benefit will accrue to plaintiff or to the remainder of her property by reason of the taking of the land in question, and denies all allegations of the petition with reference to the creation of such benefit district being unlawful, unfair, unjust, arbitrary, capricious and discriminatory.
Plaintiff’s reply denies all allegations and statements contained in the answer which are inconsistent with or in contravention of the allegations of the petition.
With the issues thus joined, plaintiff filed a motion for judgment on the pleadings based on the grounds that (a) the pleadings reflect that no material issues of fact remain undetermined and. therefore present only a question of law, and (b) the pleadings show on their face that plaintiff is entitled to the relief sought.
This motion was overruled, but, instead of acquiescing in such ruling and proceeding with a trial on the merits, plaintiff appealed, and now insists that this court should determine whether the trial court’s action in denying her motion was erroneous.
Refore proceeding to what we consider to be the decisive point in this appeal, namely the lack of this court’s jurisdiction to entertain it, we note briefly plaintiff’s contentions.
It is argued that as a matter of law the city, under the pertinent portion of G. S. 1949, 26-202, which reads:
“. . . For the payment of such value and damages the commissioners shall assess against the city the amount of the benefit to the public generally and the remainder of such damages against the property within the benefit district which shall in the opinion of the appraisers be especially benefited by the proposed improvement. . . .”
has no right to take plaintiff’s “front yard” and then turn right around and assess the damages awarded to her, including the costs of the proceeding, against her “back yard,” and in support thereof she relies on Engstrom v. City of Wichita, 121 Kan. 122, 245 Pac. 1033, where it was held:
“Where a city appropriated part of a small parcel of land to widen a city street, the erection of a benefit district to pay the total cost of the improvement, which district was exclusively comprised of the remainder of the small tract of land subjected to diminution by the condemnation proceedings, was prima facie unreasonable, and in the absence of some persuasive showing of facts or circumstances warranting such action, a judgment of the trial court enjoining the city from further proceedings thereunder will not be disturbed.” (Syl. 1.)
and on Parks v. City of Wichita, 123 Kan. 430, 255 Pac. 1105, in which a like question was dicussed.
Defendant city and its officials, on the other hand, contend for the general rule to the effect that a motion for judgment on the pleadings is proper only when no issuable facts are joined by the pleadings, and that as such cannot be said for the pleadings here under consideration the action of the trial court in overruling plaintiff’s motion was proper and should be affirmed. Defendants’ brief also contains a lengthy argument and discussion to the effect that all proceedings by the city in the condemnation action were legal in all respects.
Notwithstanding that defendants do not specifically question the jurisdiction of this court to entertain the appeal, it has long been a rule of appellate procedure that it is the duty of this court to determine such jurisdictional question even though it is not raised by the parties. (In re Estate of West, 167 Kan. 94, 204 P. 2d 729; Sullivan v. Paramount Film Distributing Corp., 168 Kan. 524, 213 P. 2d 959, 14 A. L. R. 2d 458.)
In the Sullivan case the appeal was from an order overruling a motion for judgment on the pleadings, and, following a discussion of the appellate jurisdiction of this court and what constitutes a final order, it was held:
“An order overruling a motion for judgment on the pleadings is appealable only when it can be said on the record that such motion is tantamount to a demurrer. Where issuable facts are joined by the pleadings a motion for judgment thereon is not tantamount to a demurrer and an order overruling it is not appealable.” (Syl. 2.)
(See also Diehn v. Penner, 173 Kan. 41, 244 P. 2d 215, and Buechner v. Trude, 175 Kan. 572, 574, 266 P. 2d 267.)
No attempt, other than what has already been said, will be made to summarize the allegations of the petition, answer, and reply. It is sufficient to say that, among other things, the answer contains specific denials of allegations of the petition with respect to the actions of the condemnation commissioners being unlawful, capricious, arbitrary and discriminatory. Furthermore, the reply denies all allegations of the answer which are inconsistent with or in contravention of the allegations of the petition. We have no fault to find with what was said in the Engstrom and Parks cases, supra, relied on by plaintiff, but in each of those cases there had been a trial on the merits, and in each case the trial court had made findings on questions and issues specifically put in issue by the pleadings before us in the instant case. This case has not been tried. Issuable facts being joined by the pleadings, the motion for judgment thereon is not tantamount to a demurrer, and therefore the order overruling such motion is not appealable. Further, the order is not a final order as defined by G. S. 1949, 60-3303.
It therefore follows that the appeal must be and the same is hereby dismissed.
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L. F. COTTEY, Special Judge.
Fred G. Shores died intestate, unmarried, without lineal descendants. Neither his father or mother nor any brother or sister, nor any lineal descendant of either of them, survived him. Of his collateral kindred an uncle, one of his mother’s brothers, stands in the nearest degree of consanguinity. His other heirs are the descendants of a deceased brother of his father, and of two deceased brothers and a deceased sister of' his mother.
Question: How shall his estate be distributed?
Answer: His living uncle, as the sole survivor of the five persons who once bore that degree of relationship to him, identifies and establishes the class among whom apportionment must initially be calculated in aliquot parts; in this instance, on the basis of one-fifth to each. The surviving uncle takes his one-fifth share per capita; the remaining shares are taken per stirpes by the lineal descendants of the four deceased uncles and aunt. Secs. 474.010(2) (c) and 474.020, V.A.M.S.; Copenhaver v. Copenhaver, 9 Mo.App. 200, affirmed, 78 Mo. 55, 58; Aull v. Day, 133 Mo. 337, 34 S.W. 578, 579-80; Maus, Missouri Probate Law & Practice, Vol. 4, Sec. 1226, p. 421.
That being the conclusion reached by the trial court on the only issue presented, the decree is affirmed.
All concur.
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The opinion of the court was delivered by
HOLMES, C.J.:
This is an appeal by the State of Kansas, pursuant to K.S.A. 22-3602(b)(3), upon a question reserved by the prosecution after defendant was paroled by the district court of Geary County. The question reserved as set forth in the docketing statement asks: “Did the trial court error [sic] in finding that victims have no right to notice or to be present at a sua sponte hearing concerning granting a defendant probation?”
The facts are undisputed. On February 17, 1993, Stanton Holt, the defendant, entered a plea of no contest to one count of theft, a class A misdemeanor, contrary to K.S.A. 21-3701(d), for possession of a watch stolen during a residential burglaiy. In addition to the plea, the defendant agreed to make full restitution to the burglary victiins for additional stolen property which had not been recovered. In exchange for the defendant’s plea and-agreement to make restitution, the State dropped the remaining felony charges filed against the defendant. The court accepted the plea agreement, ordered a presentence report, and set sentencing for March 9, 1993.
During the defendant’s sentencing hearing on March 9, 1993, the defendant’s counsel argued for probation, while the State recommended a maximum sentence. Additionally, the judge allowed the crime victim, Mrs. Sylvia Ehlers, to make a statement to the court. Following these statements, the court sentenced the defendant to one year in the Geary County Detention Center, with credit for time already served. Additionally, the court assessed the defendant with both court costs and full restitution. The court also noted that it would consider the defendant’s probation request at a later date.
On March 25, 1993, the district court, sua sponte, called a hearing to consider the defendant’s earlier request for probation. At the hearing, the court stated it had intended to release the defendant after 90 days had been served, but at the time of sentencing the defendant had served only 80 days in the county jail. The judge stated that as the defendant had been incarcerated more than 90 days, he was now prepared to release the defendant under certain conditions.
The State objected to the court’s proceeding, stating that the victims had not been notified of the hearing. The State maintained that the Bill of Rights for Victims of Crime Act, K.S.A. 74-7333; K.S.A. 74-7335; and Art. 15, § 15 of the Kansas Constitution afforded the victims the right to be informed of and to be present at the hearing. The court disagreed, stating that the court was not required to hold any public hearing regarding whether to grant the defendant probation and that it called a hearing only after the State objected to the court’s decision to place the defendant on probation. The court further stated that because there was no right to a public hearing, notification of the victims was not required.
The court placed the defendant on probation for a period of 18 months under specified conditions. Pursuant to K.S.A. 22-3602(b)(3), the State timely filed a notice of appeal.
K.S.A. 74-7333 the Bill of Rights for Victims of Crime Act, was first enacted in 1989. The two relevant statutes in effect at the time of the proceedings herein read as follows:
“74-7333. ... (a) In order to ensure the fair and compassionate treatment of victims of crime and to increase the effectiveness of the criminal justice system by affording victims of crime certain basic rights and considerations, victims of crime shall have the following rights:
(1) Victims should be treated with courtesy, compassion and with respect for their dignity and privacy and should suffer the minimum of necessary inconvenience from their involvement with the criminal justice system.
(2) Victims should receive, through formal and informal procedures, prompt and fair redress for the harm which they have suffered.
(3) Information regarding the availability of criminal restitution, recovery of damages in a civil cause of action, the crime victims compensation fund and other remedies and the mechanisms to obtain such remedies should be made available to victims.
(4) Information should be made available to victims about their participation in criminal proceedings and the scheduling, progress and ultimate disposition of the proceedings.
(5) The views and concerns of victims should be ascertained and the appropriate assistance provided throughout the criminal process.
(6) When the personal interests of victims are affected, the views or concerns of the victim should, when appropriate and consistent with criminal law and procedure, be brought to the attention of the court.
(7) Measures may be taken when necessary to provide for the safety of victims and their families and to protect them from intimidation and retaliation.
(8) Enhanced training should be made available to sensitize criminal justice personnel to the needs and concerns of victims and guidelines should be developed for this purpose.
(9) Victims should be informed of the availability of health and social services and other relevant assistance that they might continue to receive the necessary medical, psychological and social assistance through existing programs and services.
(10) Victims should report the crime and cooperate with law enforcement authorities.
“(b) As used in this act, ‘victim’ means any person who suffers direct or threatened physical, emotional or financial harm as the result of tire commission or attempted commission of a crime against such person.
“(c) Nothing in this act shall be construed as creating a cause of action on behalf of any person against the state, a county, a municipality or any of. their agencies, instrumentalities or employees responsible for the enforcement of rights as provided in this act.
“(d) This section shall be known and may be cited as the bill of rights for victims of crime act.”
“74-7335. ... (a) The victim of a crime or the victims’ family shall be notified of the right to be present at any public hearing where the accused or the convicted person has the right to appear and be heard.
“(b) As used in this section: (1) ‘Public hearing’ means any court proceeding or administrative hearing which is required to be open to the public and shall include but not be limited to the:
(A) Preliminary hearing;
(B) trial;
(C) sentencing;
(D) sentencing modifications;
(E) public comment sessions, pursuant to K.S.A. 22-3717, and amendments thereto; and
(F) expungement hearing.
“(2) 'Victims’ family’ means a spouse, surviving spouse, children or parents.
"(c) Notification shall be made to any victim of the crime who is alive and whose address is known to the county or district attorney or, if the victim is deceased, to the victim’s family if the family’s address is known to the county or district attorney.
“(d) Costs of transportation for the victim to appear shall be borne by the victim unless the appearance is required pursuant to a subpoena or other order of the court.”
Both of the statutes quoted above were amended effective July 1, 1993; however, the amendments are not applicable to the issue now before the court. When used in this opinion, K.S.A. 74-7333 and 74-7335 will refer to the statutes in effect at the time of the events involved in this appeal.
On November 3, 1992, the voters of the State of Kansas adopted Art. 15, § 15 of the Kansas Constitution, which reads:
“(a) Victims of crime, as defined by law, shall be entitled to certain basic rights, including the right to be informed of and to be present at public hearings, as defined by law, of the criminal justice process, and to be heard at sentencing or at any other time deemed appropriate by the court, to the extent that these rights do not interfere with the constitutional or statutory rights of the accused.
“(b) Nothing in this section shall be construed as creating a cause of action for money damages against the state, a county, a municipality,- or any of the agencies, instrumentalities, or employees thereof. The legislature may provide for other remedies to ensure adequate enforcement of this section.
“(c) Nothing in this section shall be construed to authorize a court to set aside or to void a finding of guilty or not guilty or an acceptance of a plea of guilty or to set aside any sentence imposed or any other final disposition in any criminal case.”
Although Art. 15, § 15 was adopted by the voters in 1992, it appears that the constitutional provision does not provide any greater rights than those already granted by statute.
The sole issue before this court is whether the victim of a crime •is entitled to notice under K.S.A. 74-7335 and Art. 15, § 15 when the district court grants a misdemeanor defendant a parole from a partially served jail sentence.
Throughout this entire proceeding, counsel for the parties and the trial court consistently refer to “probation,” when the correct terminology is parole. The respective terms “probation” and “parole” are properly defined in K.S.A. 1992 Supp. 21-4602(c) and (d) as follows:
“(c) ‘Probation’ means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment except as provided in felony cases, subject to conditions imposed by the court and subject to the supervision of the probation service of the court or community corrections. In felony cases, the court may include confinement in a county jail not to exceed 30 days, which need not be served consecutively, as a condition of probation pursuant to subsection (b)(3) of K.S.A. 21-4603 and amendments thereto.
“(d) ‘Parole’ means the release of a prisoner to the community by the Kansas parole board prior to the expiration of such prisoner’s term, subject to conditions imposed by the board and to the secretary of corrections’ supervision. Parole also means the release by a court of competent jurisdiction of a person confined in the county jail or other local place of detention after conviction and prior to expiration of such person’s term, subject to conditions imposed by the court and its supervision. Where a court or other authority has filed a warrant against the prisoner, the Kansas parole board or paroling court may release the prisoner on parole to answer the warrant of such court or authority.” (Emphasis added.)
In the factual recitations set forth herein, we have used the term “probation” to be consistent with the record on appeal and the proceedings in the trial court, although the appropriate term is “parole.”
Although K.S.A. 74-7333(a) states that “victims of crime shall have the following rights,” there is nothing in the statute that actually creates any mandatory rights for crime victims, and .the provisions are merely directive or permissive. We also note there are no provisions for enforcement of the suggested rights and no sanctions imposed if they are not followed. K.S.A. 74-7335(a) provides: “The victim of a crime or the victim’s family shall be notified of the right to be present at any public hearing where the accused or the convicted person has the right to appear and he heard.” (Emphasis added.) Subsection (b) of the statute defines “public hearing” to include the preliminary hearing, trial, sentencing, sentencing modification, public comment sessions pursuant to K.S.A. 1992 Supp. 22-3717, and expungement hearing.
Instead of focusing on K.S.A. 74-7335(a), the relevant language of the victim’s notification statute, and the question actually before the court, the State relies upon case law addressing the issue of sentence modification for convicted felons pursuant to K.S.A. 1992 Supp. 21-4603. In doing so, the State apparently equates parole of a misdemeanant, as defined in K.S.A. 1992 Supp. 21-4602(d), with sentence modification in an attempt to bring its arguments within the definition of a public hearing as stated in K.S.A. 74-7335(b). In State v. Pierce, 246 Kan. 183, 787 P.2d 1189 (1990), the defendant contended his rights to counsel and to a hearing on his motion to modify his sentence had been violated when the trial court ruled upon the motion without a hearing. This court stated:
“K.S.A. 21-4603 is the statute which delineates the various alternatives the district court may utilize in disposing of criminal proceedings after a defendant has been found guilty of a crime. Subject to certain specified time restraints, subsection (3) authorizes the court to modify a previously imposed sentence. Action by a court under this subsection may be taken sua sponte or may be based upon a motion by the defendant requesting a modification. The statute does not specify any procedure and does not mandate that a hearing be held or that counsel be appointed to represent a defendant on a motion to modify sentence.” 246 Kan. at 185-86.
The court went on to state that “whether a defendant is entitled to a hearing on a K.S.A. 21-4603(3) motion [to modify sentence] is discretionary with the trial court based upon the record before the court at the time.” 246 Kan. at 187.
In a letter submitted by the State after oral argument, and ostensibly in answer to questions posed by members of this court, the State dwells at length upon, and cites numerous authorities pertaining to, the question of whether granting probation to a felon is a sentence modification under K.S.A. 74-7335(b)(l)(D) and Art. 15, § 15 of the Kansas Constitution. None of the authorities cited and relied upon pertain to the narrow issue before us of whether a public hearing, with the right of a defendant to appear and be heard, is required when a trial judge determines, sua sponte, to grant a convicted misdemeanant a parole. Regardless of what may be the interpretation of Art. 15, § 15 and die current crime victims bill of rights statutes as they pertain to probation of felons, we do not find the State’s argument or authorities persuasive on the issue here.
In the present case, the trial court, in a somewhat heated exchange with the county attorney, stated:
“Counsel, I have already informed you that this was not going to be a public hearing, that it was in the discretion of tire Court to determine when sentences are served and, since I had already sentenced him to jail on a misdemeanor, I can order him released without any hearing.
“The Court does not even need to have a hearing in this particular case. The Court could merely order the sheriff to terminate the period of incarceration and place him on probation. So far as a public hearing being required, it is not, and for that reason it is not necessary that I even give notice to you or anyone else. So please make that clear in the record.” (Emphasis added.)
The county attorney responded in relevant part:
“My only objection — I’m not in a position to criticize the actions of the Court reference what’s obviously the Court’s discretion. My only concern was I thought it would be appropriate that if the matter is going to be taken up that the victims have an opportunity to be here.” (Emphasis added.)
We agree that the trial court was legally correct. We also agree with the State’s observation that the issue was “obviously [within] the Court’s discretion.” There is nothing in our constitutional, statutory, or case law which requires a public hearing or holds that “the accused or the convicted person has the right to appear and be heard” at the granting of a parole to a misdemeanant. The granting of a parole to a misdemeanor defendant who has served a portion of the jail sentence imposed is purely discretionary with the trial court as is the holding of any hearing in connection therewith. No abuse of discretion has been shown. The State’s appeal is without merit.
We do recognize, however, that a trial court, in exercising its discretion in paroling a misdemeanant, would be well advised to keep in mind the spirit of the Bill of Rights for Victims of Crime Act and Art. 15, § 15 of the Kansas Constitution. While requiring public hearings and notice to crime victims in all cases involving parole of a misdemeanant would be counterproductive, the right of the public in general, and victims in particular, to open access to the courts is to be encouraged. We recommend that trial judges carefully consider holding a public hearing and notifying crime victims in cases where the court deems it advisable and when it can be accomplished without undue burden on the judicial system.
The appeal is denied.
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The opinion of the court was delivered by
Wells, J. :
Prior to the 20th day of August, 1898, the plaintiff was the owner of a section of land in Dickinson county, which was occupied by the defendants in error as his tenants. The lease was in writing, and by its terms expired on the 1st day of March, 1899.
On the 28th day of August, 1898, the parties to this action, the plaintiff in error acting by George Merrill, his agent, made a contract in writing, by the terms of which the plaintiff in error agreed that, if the defendants in error would make certain payments and perform certain covenants in said instrument in writing mentioned, the plaintiff in error would convey said section of land to the defendants in error. By the terms of said contract the defendants in error agreed to pay the plaintiff in error $8820 ; $100 in cash, $900 on or before November 15, 1898, and $1000 on March 1, 1899, at which time a deed was to be executed and a mortgage taken back for $6320, the balance of the purchase-money. The contract provided :
“And in case of the failure of the said party of the second part to make either of the payments or to perform any of the covenants on their part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by them on this contract, and said payments shall be retained by said party of the first part in full satisfaction and in liquidation of all damages by him sustained, and he shall have the right to reenter and take possession of the premises aforesaid.”
After the payment of $100, at the time of the execution of the contract, no further payments were made, and during the month of September, 1898, after the execution of said contract of purchase and before the maturity of the first time payment, the defendants in error planted a crop of wheat on the land.
The defendants in error failed to make the payment of $900 at maturity, on the 15th day of November, 1898, and notified the plaintiff in error that they would not make the payment of $1000 to mature on the 1st day of March, 1899. On the 28th day of February, 1899, the plaintiff in error, by George Merrill, bis agent, served the defendants in error with a notice in writing, as follows :
“notice.
“To David W. Martin and Annie J. Martin:
“You are hereby notified that you have failed to pay the $900 on or before the 15th day of November, 1898, according to the terms of a contract for the purchase of all of section 34, township 15 south, of range 1 east of the sixth principal meridian, in Dickinson county, state of Kansas, entered into between you and me on the 20th day of August, 1898 ; you are hereby notified that I hereby elect that said contract be forfeited and determined, and that I shall retain the same in full satisfaction and in liquidation of all damages by me sustained to this date.
“Dated Abilene, Kan., February 28, 1899.
“By Geokgb Mebbill, Agent. R. Thayer.
And at the same time and in the same manner another notice was served on the defendants, of which the following is a copy :
“notice.
‘ ‘ To David W. Martin and Annie J. Martin:
“You are hereby notified that your lease on the following-described premises situated in Dickinson county, state of Kansas, to wit: All of section 34, in township 15 south, of range 1 east of the sixth principal meridian, will expire on to-morrow, March 1, 1899, and that I will expect possession of said premises at that time according to the terms of said lease.
“You will, of course, be permitted to enter upon the land for the purpose of harvesting the crop of fall wheat you now have planted, but I shall expect the full and complete possession of all the buildings and of all the land not planted to fall wheat.
“ Dated Abilene, Kan., February 28, 1899.
“By George Merrill, Agent. H. THAYER.
A few days afterward the defendants in error moved off the place. The wheat referred to in the last notice was ready to harvest about July 3, 1899, and the defendant in error claimed the same, and were about to harvest and remove it from the place when they were enjoined from so doing. This injunction was afterward vacated, and by stipulation of parties the wheat was marketed and proceeds deposited in a bank to await the final adjudication of their respective rights thereto. Upon a final hearing, the court held that the plaintiff was entitled to one-third of the money and the defendants to two-thirds thereof, and divided the costs. To reverse this judgment the case is brought to this court.
The first, second and third specifications of error relate to the notice to quit, and the admission therein that the defendant had the right to reenter and harvest the wheat, and that under said notice they left the premises. This was competent evidence, and the notice amounted to an admission of the defendants’ right to the wheat, and they acted under it and complied with its demands, and had a right to rely upon its terms, if the plaintiff authorized the same, or if the defendants had a right to rely thereon as the act of the plaintiff. All the business in relation to the land in question between the plaintiff and defendants was done on behalf of the plaintiff by the agent who served this notice, and, as the notice was within the apparent scope of his agency, the principal is bound thereby ; besides, in this case the agent was expressly authoi'ized to employ counsel, which he did, and the notice in question was prepared and served under his direction.
We do not find anything in the record to authorize the court to award one-third of the pi*oceeds to the plaintiff. It would appear to be the landlord’s share under the lease, but the lease or its terms upon this subject do not appear. However, of this the plaintiff cannot complain.
It may be that the contract of sale terminated the lease, and upon a forfeiture thereof the rights of the defendants in the land were absolutely forfeited. Or it may be that even under the lease the lessees would not have any right to the crops harvested at the time of the termination of the tenancy; but the plaintiff elected otherwise, and having made that election and the other party accepting its terms the plaintiff is bound thereby.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
This action was commenced on October 24, 1894, by John H. Richert against Moses Gum upon account for money loaned and work done. The judgment of the court was for the plaintiff in the sum of $301.92. The defense was that part of the items embraced in plaintiff’s claim constituted in fact a separate account against the firm of Gum & Voorhees, for whom the plaintiff performed labor as the engineer of a steam thrasher from some time in July, 1891, until October 5 (or 7) of that year, when the partnership was dissolved, the business being continued by the defendant, and the plaintiff remaining in his employ in the capacity stated.
The answer admitted that a mutual running account existed between the plaintiff and the defendant, the first item of which was for one day’s work at harvesting on July 3, and the next for one day’s work as engineer on October 5, 1891, and that from the last-named date almost continuously until the end of that year, and several times thereafter prior to April, 1892, the plaintiff performed labor for the defendant as an engineer. The answer averred that the account against the said firm was barred by the statute of limitations. It contained a set-off showing payments made and board and attendance in sickness furnished to the plaintiff. There is substantial agreement between the parties as to the several sums paid by the defendant to the plaintiff. The defendant’s account shows payments of five dollars and ten dollars, respectively, in 1891, while the plaintiff’s account shows such payments to have been made in the order stated on July 17 and September 28. The next cash payment was twenty-five dollars, made on October 21. The money loaned by the plaintiff to the defendant was mainly one item, ninety-five dollars, which was loaned, to Gum & Voorhees on July 24. October 5 (or 7) Voorhees sold out his interest in the thrashing-machine and engine to the defendant, or to the defendant’s wife, the sale being precipitated by a disagreement between Voorhees and the plaintiff. The defendant on the day of such transfer engaged plaintiff to continue his work as engineer.
At the time of the dissolution of the partnership, it was agreed between Gum and Voorhees that the latter should be relieved of his liability for the firm debts. It was admitted by the defendant’s counsel in his statement to the jury that from and after October 7,1892, Richert dealt with the defendant individually ; and there is nothing in the record to show that Richert knew Mrs. Gum had or claimed any interest in the thrashing outfit. Testifying on the trial, the defendant admitted that the plaintiff requested a settlement of the account, and that he, the defendant, expressed his willingness to settle at a given time and place but that the plaintiff did not appear for that purpose ; while the plaintiff testified on the same point that the defendant said he would settle as soon as he made certain collections which he was then starting out to make, and that they did not agree as to the place of meeting for the purpose of such settlement. The defendant also admitted that he had not thought of the statute of limitations until a short time before the suit was brought, and that until advised differently by his counsel he had expected to set-off against the plaintiff’s account a claim for damage arising from the plaintiff’s breach of a contract to run the engine during the thrashing season of 1892, and that he expected to insist upon such claim when he and the defendant should meet for settlement of their accounts.
The foregoing facts indicate that the defendant, recognizing his liability for the debt due from Gum & Voorhees to the plaintiff, intended that the payments made by him should be applied on the account gen erally, and that he did not expect or intend that any distinction should be made between what he owed as a member of the firm and what he owed as an individual for the work done and the money lent by the plaintiff. The evidence seems to have warranted the trial court in adopting the theory and in instructing the jury as if the account sued upon by the plaintiff were one entire account. In this view, it was not error to refuse to instruct the jury as requested by the defendant, to the effect that any transaction between the plaintiff and Gum & Voorhees could not be considered.
It was not error to refuse to permit the wife of the defendant to testify. Prom the statement made by the defendant’s counsel it is evident she was not a proper party defendant, and under the statute she was clearly incompetent as a witness.
We discover no merit in the defendant’s claim that the account against the firm of Gum & Voorhees was barred by the statute of limitations. The trial court might have applied all the payments made upon the firm account. This would have left an uncollectable balance of that account. The plaintiff’s recovery would then have been limited to the amount due upon the strictly individual account of the defendant. This result would have followed had it been necessary to proceed according to the rules governing the application of payments where neither debtor nor creditor had determined such application. Upon the proposition just stated, see the following cases: Ashby v. Washburn, 23 Neb. 571, 37 N. W. 267, and note; Pardee v. Markle, 111 Pa. St. 548, 5 Atl. 36, and note; Leeds v. Gifford, 41 N. J. Eq. 464, 5 Atl. 795.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This action was commenced by the plaintiff in error, as plaintiff, in the district court of Wyandotte county to recover from the Evans-SniderBuell Company $1550, claimed as a balance due on a consignment of cattle sold by the defendant on commission. A trial was had before the court and a jury. The defendant interposed a demurrer to the plaintiff’s evidence, which was sustained, and judgment was rendered against the plaintiff for costs. It excepted, and presents the case to this court for review.
John Sparks and Katcliff Sparks, in November, 1892, were engaged in the cattle business as feeders, as Sparks Brothers; the plaintiff was a corporation engaged in the banking business at Highland, with one Beeler as cashier, and the defendant a corporation, with its principal office at Kansas City, Kan., engaged in the live-stock commission business. Sparks Brothers borrowed of the defendant $15,000, for which they executed their notes secured by a chattel mortgage upon 600 head of cattle. About that date Sparks Brothers entered into a contract with the plaintiff, whereby plaintiff agreed to furnish feed for the cattle during the winter and to fatten the same for the market, and to furnish money to buy hogs to run with the cattle. The plaintiff furnished money to buy feed for the cattle and hogs to run with the same, for which it claimed a lien on the cattle, or upon the proceeds thereof, for the amount so advanced, subject only to the mortgage of defendant.
In January, 1893, the bank demanded of Sparks Brothers a payment upon the feed bill, whereupon, with the knowledge of the bank, they borrowed $1500 of Evans-Snider-Buell Company, for which they executed their note, which amount the defendant paid to the bank as a partial payment of the feed bill claimed by it, as a lien against the cattle, and the account was credited with the amount.
The first shipment of cattle was made to Evans-Snider-Buell Company by Sparks Brothers January 28, 1893, amounting to $5288.92, which was applied, to the payment of the $15,000 mortgage ; the second shipment was made by Sparks Brothers April 14,1893, the net proceeds being $3360.11, which was applied to the payment of the $1500 note with interest, the remainder to the payment of the $15,000 note; on April 17, Sparks Brothers made another shipment, which amounted to $6972.18, which was applied to the payment of the $15,000 note.- This left a balance due of $1415.35: The account of sales was rendered Sparks Brothers, showing each time the state of the account and deductions made. On April 26, 1893, a shipment of the remainder of the cattle was made in the name of J. S. Beeler, consignor, to the defendant, the net proceeds amounting to $4721.25, and after deducting from the proceeds $1415.35, the amount due upon the $15,000 mortgage, the balance of the proceeds was deposited in the Metropolitan National Bank to the credit of plaintiff.
The plaintiff in error contends that the whole agreement with Sparks Brothers, that they should buy the cattle, that defendant should make the loan and take a chattel mortgage for $15,000, that plaintiff should advance money and hold the cattle and proceeds of their sale as security for its advance, was one contract, each part dependent upon the other; that the defendant knew what Sparks Brothers’ contract with the bank was, and its chattel mortgage and the unsecured note for $1500 were taken with full knowledge of that agreement; and that the agreement between Sparks Brothers and the bank amounted to an oral chattel mortgage.
The evidence does not show a contract amounting to an oral chattel mortgage or a lien of any kind against the cattle. The agreement amounts simply to a statement of the sources from which Sparks Brothers expected to repay the bank. The contract as stated by the parties, in substance, is:
”Q,ues. by Mr. Beeler : You may state what was said, and what you said, and what he said. Ans. Ratcliff Sparks said he wanted money; he wanted the Bank of Highland to furnish money to buy corn and hogs for these cattle, and I told him the bank would furnish this money, and that I wanted security above the Evans-Snider-Buell Company mortgage, which was $15,000.
“Q. Now state what he said in answer to your statement that you- wanted this security. A. Rat-cliff Sparks told me I could have everything over the $15,000.
“Q. State what he said. A. He said we should have every dollar above twenty-five dollars a head on each steer as they were shipped out.
”Q. (Ratcliff Sparks) How was the bank to be secured and paid? A. Why, me and Mr. Beeler agreed that I would, as soon as this first mortgage was paid off, I was to put all the funds in the bank, ship out all the cattle and hogs and stuff, and place the funds in the bank. I did so. I put in all these except a little that I used for expenses.”
This would not constitute a valid mortgage if in writing. An agreement, to constitute a valid oral mortgage, must contain all the essential elements and features of a written mortgage. There was no agreement that the property should be held or retained by the bank until the amount of its claim should be paid, as was in the case of Weil v. Ryus, 39 Kan. 564, 18 Pac. 524; nor was there an agreement that the title of the property should be held by the bank until its claim should be paid, as was in the case of Bates v. Wiggin, 37 Kan. 44, 14 Pac. 442. The contract is wanting in the essential agreement that the title to the property, or a specific interest, shall pass to the mortgagee, subject to defeasance upon the performance of conditions. There was no apparent intention to create a lien upon the property; simply an agreement to apply the proceeds to the payment of the indebtedness.
Suppose we concede that the plaintiff, by virtue of this agreement, had a lien upon the cattle, or proceeds thereof; it had agreed with Sparks Brothers that it would advance money to feed and carry the cattle in question until the same should be ready to market, and that the defendant’s mortgage should be paid first. In January, 1893, the bank demanded of Sparks Brothers a payment on account of the feed bill; the cattle were not yet ready for market, and Sparks Brothers, with the knowledge of the bank, applied to the defendant for and procured a loan of $1500 upon their note with which to make a payment upon the feed bill, which amount was paid upon a draft drawn by Beeler, cashier, and signed by Sparks Brothers, and credited upon the feed bill claimed as a lien against the cattle. If the plaintiff had a lien against the cattle for the amount of money furnished for feed, the defendant should be in equity subrogated to the rights of the plaintiff to the extent of the money so advanced. (Crippen v. Chappel, 35 Kan. 495, 11 Pac. 458; Bowling v. Garrett, 49 id. 521, 31 Pac. 135.)
The judgment is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
'Defendant in error obtained a judgment against the plaintiff in error on the 19th day of October, 1897, perpetually enjoining the plaintiff in error from taking possession of or in any way interfering with, a certain strip of land described in plaintiff’s petition in the case as a strip of land 16 feet wide in the northeast quarter of section 22, township 11 south, of range 25 east, in Wyandotte county, beginning at the southwesterly corner of a tract of land occupied by the Schwartzchild-Sulzberger Company, said point being 634.76 feet southwesterly from the south line of Osage avenue, Armourdale, Kan., measured along the easterly line of Railroad^ street ; thence east 21.77 feet; thence' southwesterly parallel to and 16 feet from Railroad street 702.09 feet; thence west 21.77 feet to Railroad street; thence northeasterly along the easterly line of said Railroad street 702.09 feet to the point of beginning.
The findings of the court upon which this judgment is based are as follows :
“The court, being fully advised in the premises, finds the issues generally in favor of the plaintiff and against the defendant; and finds that the condemnation proceedings instituted by the- defendant, as averred in the petition and answer filed herein, are void and of no effect as to the strip of land 16 feet wide described in plaintiff’s petition, as against the rights of the plaintiff herein. The court further finds that, prior to the institution of said condemnation proceedings, the plaintiff was and for along time had been in possession of said strip of land, using it for railroad purposes similar to those for which defendant sought and was*.about to take under said proceedings.”
There are twelve assignments of error, including that based upon the denial of the motion for a new trial. The second assignment challenges the- sufficiency of the petition. . The third is that the judgment is against the evidence. The fourth, fifth, sixth, seventh, eighth and ninth are in substance the same as the third. The tenth is based upon the exclusion of evidence offered by the plaintiff in error. The eleventh is founded upon the admission of evidence offered by the defendant in error. The twelfth assignment presents the same question as the third to the ninth, inclusive, i. e., the sufficiency of the evidence to sustain the judgment of the court. It will be observed that the judgment of the court enjoining the plaintiff in error from interfering with the defendant in error’s use and occupation of the strip of land is. based upon two propositions : (1) That the attempted condemnation of the strip by the plaintiff in error, by reason of the failure to conform to the statutory requirements, was void as against the defendant in error, plaintiff below; (2) that there had been a prior appropriation by the plaintiff, defendant in error, of the strip to a public use similar to that to which the defendant, plaintiff in error, sought to appropriate it. The real contention upon the part of the plaintiff in error is that the evidence does not disclose such a failure upon its part in the condemnation proceedings to conform to the statute as would render its proceedings void, and that the evidence does not sustain the finding of the court that there was such a prior occupation and appropriation as would prevent the plaintiff in error from appropriating it by condemnation proceedings. The sufficiency of the petition is not challenged in the argument, so we may reasonably conclude that the second assignment of error is' abandoned.
In the argument it is first contended that the judgment is not based upon any irregularity in the condemnation proceedings, but because of the prior rights of the defendant in error in the land, and that by reason thereof the plaintiff in error had not the light to condemn the strip to its use. Counsel then proceed to argue, first, that the notice required by the statute was given, and was sufficient to bind the defendant in error, and in support of this they cite Huling v. Kaw Valley Railway, 130 U. S. 559, 9 Sup. Ct. 603, 32 L. Ed. 1045, a case arising under our statute. It is true that in this case the supreme court of the United States held that a notice which stated that the company would upon a certain day proceed to condemn a right of way through a certain described section was sufficiently certain as to the location of the line to bind one who was the owner of one-quarter of such section.
The notice in this case is that the commissioners will meet on Monday, the 10th day of June, at ten o’clock a. m., and commence at a point near the confluence of the Kansas and Missouri rivers, and proceed thence in a southerly direction to a point on the state line between Kansas and Missouri up to which the Kansas City Suburban Belt Railroad Company, a Missouri corporation, has now constructed its railroad; thence running in a northwesterly and westerly direction to Ohio avenue ; thence westerly, and southwesterly on Ohio avenue, formerly Second street, in the city of Kansas City, Kan., to the east bank of the Kansas river; thence across 'said river to the west bank thereof ; thence southerly and westerly along the' west bank of said river, through the southeast quarter of section 10 and northeast quarter of section 15 and northeast quarter and southwest quarter of section 14, the northwest quarter of section 23, the northeast quarter of section 22, of township 11, range 25 east, to a point near the east-and-west line through the center of said section 22 ; thence in a southwesterly direction through the northeast and southeast quarters of sec tion 22 to a point near the southeast line of the right of way of the Kansas Citjr Belt railroad ; thence in a southwesterly direction and westerly direction along or near said line of right of way through the southeast and southwest quarters of section 21 to a point along the line between sections 20 and 21 of said township and range ; thence in a southwesterly direction through the southeast quarter of said section 20 to a point on the east and the north bank of the Kansas river ; thence across the Kansas river to a point near where Argentine boulevard (formerly James street), extended, crosses said river ; thence in a general westerly direction to a point on the west line of the alley running north and south along the west side of block 14 in Mulvane’s addition to the city of Argentine; and thence west thereof to the city or village of Turner.
It appears from the evidence that under this notice the plaintiff in error intended to condemn this sixteen-foot strip of land heretofore described, and that only; that the commissioners met pursuant to said notice about a half-mile from the confluence of the two rivers named in the notice as the place of meeting and went from there to this strip of ground and appraised the same. The route designated in this notice, it appears from the evidence, is the general line of the" plaintiff in error as it had been constructed long prior to the inception- of this proceeding. In other words, it is apparent from the entire record that the plaintiff in error, by its proceedings in condemnation, was attempting to appropriate this strip of land to its own use without notice to the defendant in error.
It is said in the brief of counsel for the- plaintiff in error that the record discloses the fact that the defendant in error did have actual notice of the con demnation proceedings, both by conversations between the. principal officers of the two companies and by correspondence. In this, however, counsel are mistaken.
It is next contended that the defendant in error had no such right or interest, in the land as would require notice of the condemnation proceedings to be given it. This contention is baseá upon the further claim that the defendant in error, although having its track built over a part of this strip for many years, was simply there as a licensee by the license of the owners of the fee, and the subsequent grantees, under whom they entered, had notice and were present at the time the appraisement was made, and therefore the defendant is bound. The contract under which the defendant in error entered upon the strip of land and constructed its line of road is in writing, is duly executed by the parties, but is not acknowledged and was not recorded. It is contended that an easement of way in land can only be created by deed duly executed, witnessed, acknowledged, and recorded, and in support of this authorities are cited from Massachusetts, Connecticut, Wisconsin, New York, and Ohio, special stress being laid upon the two authorities cited from the supreme courts of Massachusetts and Ohio. In Cook v. Stearns, 11 Mass. 536, cited by counsel, there was a demurrer to a plea of justification of a trespass under a license. The demurrer was sustained. Upon appeal, the supreme court held that a license was created by parol, and that unless the plea disclosed .a grant by deed or writing it came within the statute of frauds. It said :
“But a permanent right to hold another’s land for a particular purpose and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by our statute.”
The other cases cited are to the same effect; that is, that an interest in land can only be created by writing, and, in effect, that an easement is such an interest. In the case of Wilkins v. Irvine, 33 Ohio St. 143, the license was created by a writing. The court held that it could not rise to the dignity of a deed or an instrument creating an interest- or a right in land, because it was not sealed, witnessed and acknowledged as provided for by the statute of that state. We have no such statute. A deed need not have a seal. It need not be witnessed. It is good between the parties without acknowledgment or being recorded. Registration only imparts notice and can only be had when acknowledged or proved, but between the parties and purchasers with notice is good as a conveyance, although neither sealed, witnessed, acknowledged, nor recorded. Our conclusion upon this proposition is that the writing created an easement .in the defendant in error, and that it was entitled to notice of the condemnation proceedings ; that owing to the condition of the land sought to be condemned, the fact that it was a part of a city and not of country, or farm, that the particular part of the section designated in the notice was many times subdivided, and held by numerous owners, and that it was apparent from the evidence that the plaintiff in error sought to obtain the condemnation without the knowledge of the defendant in error, the court was justified in finding and holding the condemnation proceedings void as against the defendant in error, which was in possession.
It is contended further that this, being a license only, was revoked by abandonment. It would not seem necessary to discuss this contention, in view of the fact that we have concluded that the defendant in error held an easement in the land. There was no abandonment thereof, nor was there any change in the character of the occupation of the right of way that was so inconsistent with the right of easement granted as to bring it within the rule laid down in the cases cited by counsel in support of that contention. Nor can the contention be sustained that the license was revoked by the failure of the Western Dressed Beef Company, and the sale of the premises within which the right of way was located. It was not a licensé ; therefore a sale of the premises subservient thereto would not revoke it.
It is contended further that as to a part of this sixteen-foot strip of land, it was subject to condemnation for the use of the plaintiff in error, because as to that part (about 90 feet, possibly 100 feet) at one end of the strip, the track of the defendant in error was not constructed thereon until April 25, 1895, the day before the plaintiff in error filed its petition in the district court praying for the appointment of appraisers in the condemnation proceedings. They say that as to this part of the strip the defendant in error was a trespasser, and being a trespasser was entitled to no rights in the premises, entitled to no notice of the condemnation, had no status to attack the legality thereof, and hence, as to that part of the strip, the injunction ought not to have applied. The defendant in error subsequently acquired the title in. fee to the entire strip. The evidence shows that it became necessary to straighten its' line by an occupation of this end of the strip at that time by reason of the fact that the plaintiff in error had deprived it of its connection with the Schwarzscliild-Sulzberger plant by changing the head-blocks upon the plant to facilitate its own connection with the plant over its tracks upon a strip of land fourteen feet wide, adjoining the strip in controversy.
The plaintiff and defendant are rival companies,' maintained to afford switching facilities between the various enterprises of Kansas City and the different railway systems. Both were seeking entrance to this dressed-beef plant, each apparently endeavoring to obstruct the progress of the other. The plaintiff in error had constructed its main line ; it had switches upon the adjoining-strip of land, by which it was connected with the plant of Schwarzschild-Sulzberger. It simply wanted to enlarge its facilities and restrict the facilities of its competitor. It had not platted its line proposed to be constructed upon this strip of land ; it had made no survey; it had set no stakes. Defendant in error was in possession of the greater part of it. As before stated, it straightened its track by reason of a necessity occasioned by the conduct of the plaintiff in error. It first occupied this 80 to 100 feet of ground. It occupied it the day before the plaintiff in error began its condemnation proceedings. Under the law, as it seems to us well established, it could not acquire a right of way previously occupied by another line, either by purchase or condemnation. See Mills on Eminent Domain, section 47. It is there said:
“When different corporations desire the same location, the one that is prior in point of time is also prior in point of right, and the first location, if followed by construction, operates to secure the prior right.”
This statement of - law by Mr. Mills is supported by the decisions of the courts in Waterbury v. Dry Dock &c. Railroad Company, 54 Barb. 388; The People v. New York and Harlem Railroad Company, 45 Barb. 73; Sioux City & D. M. Ry. Co. v. Chicago. M. & St. P. Ry. Co., 27 Fed. 770; Railway Co. v. Alling, 99 U. S. 468, 25 L. Ed. 438. In the case of Sioux City & M. Ry. Co. v. Chicago, M. & St. P. Ry. Co., supra, it was held that a prior occupation by staking out the line of road, so as to indicate its permanent location, was such an appropriation as deprived another road of a right to acquire the land subject to the right of way and thus defeat the construction by the prior occupant. In that case there was a mere survey, a permanent location, the title to the right of way not being acquired from the owner. The rival company obtained title to the land from the owner by deed, knowing the line of its rival had been located thereon. Under these decisions, it cannot be said that the defendant in error was a mere trespasser, even as to the 80 or 100 foot strip. It is immaterial to the plaintiff in error that as to the landowner the defendant in error had acquired the right or had not acquired the right. It had not only located but it had constructed its line and subsequently acquired the right, so that when the plaintiff in error attempted to assert its right under its condemnation proceedings the defendant in error was in the actual possession or occupation of the land with its line; and having been so appropriated, and the condemnation proceedings having been had without proper notice, and in such manner as not to be conclusive upon the defendant in error, injunction was the proper remedy, and the judgment of the court was sustained by the facts in the case as well as by the law. Nor were the interests of the plaintiff in error of such character as to give it a right against that rule of law preventing the taking of property which had already been appropriated for a public use. There was no express grant therefor. Nor was it so by nec essary implication. The refusal to allow it did not defeat the franchise of the plaintiff or prevent it from performing its functions under its charter. At most, it was a mere matter of convenience. See Pittsburg Junction R. Co.’s Appeal, 122 Pa. St. 511, 6 Atl. 564; Cincinnati, La F. & Chi. R. R. Co. v. D. & V. Ry. Co., 75 Ill. 113; Barre Railroad Company v. Railroad Companies, 61 Vt. 1.
The court committed no error in the progress of the trial to make a retrial necessary. The judgment is affirmed.
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The opinion of the court was delivered by
Wells, J.:
The defendant in error, as plaintiff below, recovered a judgment against the plaintiff in error for $500 for damages alleged to have been sustained by her by reason of her ankle being sprained, dislocated and broken while attempting to cross one of the streets of said city, said injury being claimed to have been caused by the negligence and carelessness of the plaintiff in error.
The first question we shall consider is as to the qualifications of Harshberger, McCoy and Betts as jurors. Harshberger was a taxpayer of. the defendant city and all three had been selected as talesmen and served as jurors within a year. McCoy and Betts were not taxpayers.
The defendant in error says :
"The plaintiff in an action against a city can challenge a juror on the ground of being a taxpayer, because the suit is against the taxpayers and the juror is directly interested in the result, . . . but the city cannot challenge a taxpayer for that reason.”
We do not think this is a correct statement of the law. The statute disqualifies any person who has an interest in the cause from sitting as a juror in the trial thereof, and the supreme court has repeatedly held that a resident taxpayer of a city is incompetent under this provision where the city is being sued, and there is nothing in the statute to indicate that this disqualification can be taken advantage of by but one party. We think that, where an absolute right of challenge is given without limitation, either party may exercise said right without any investigation as to the probable bias of the. juryman.
The next question is, Does the statute disqualify a person who has .served upon a jury as a talesman within a year from again serving upon a jury? It is contended by the defendant in error that the only disqualification provided by law for former jury service is that part of section 280 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4533), which reads : Or any person who shall have served once already on a jury as a talesman on the trial of any cause in the same court during the term.” The plaintiff in error insists that, under section 3, chapter 94, General Statutes of 1897 (Gen. Stat. 1899, § 3681), these jurors were disqualified. Said section reads :
" In making such selections, each person who shall have served as a juror in any capacity at any term of court during the year next preceding such selection shall be excluded from the list of jurors for the then ensuing year ; and if any such person shall be selected or drawn, it shall be the duty of the court to which such jurors shall be summoned to strike the names of such persons from the list of jurors; and it shall be good cause of challenge to any juror that such juror shall have served as a juror in any court of record during the year next preceding such selection. . .
This section was passed several years after the one previously quoted from, and it seems to us to be clearly intended to disqualify for jury service any one who has actually served as a juror in any capacity in any court of record during the year preceding the selection of the list for that term. For these errors the judgment will be reversed and a new trial directed, without discussing the remaining allegations.
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The opinion of the court was delivered by
Milton, J.:
Plaintiff in error seeks the reversal of a judgment in favor of the defendant in error allowing damages in the sum of $225, and an attorney fee of $85, for the killing of live stock by an engine of the railway company. The petition alleged that the animals killed — two horses and three mules — escaped from the plaintiff’s pasture through a defective gate in the right-of-way fence. The judgment followed the verdict of the jury, which returned a lárge number of findings of fact. It appears that the gate was properly constructed, the posts being of oak, about eight inches square, and the fastening being a hook and staple. It was hung on hinges, and when built, some six years before the animals were killed, rested against the post upon the inner side of which was the staple to receive the hook. For a long time prior to the date mentioned the post supporting the gate was leaning somewhat toward the west and south, causing the upper part of the east end of the gate to be drawn away from the post containing the staple, thus increasing the strain upon the fastening, and also causing the gate to swing open whenever unfastened. On the morning of September 17, 1893, the gate was standing open, the staple lying on the ground near the post, and the animals were dead on the right of way some distance from the gate. They were in the pasture the previous evening, and there is nothing in the record to indicate that they could have entered on the right of way at any place other than at the gate. .The testimony of an apparently competent witness tended to prove the animals to be worth more than $400. No testimony on this point was introduced by the defendant. The plaintiff testified that he had in the preceding July told the acting section foreman in charge of the section which extended through his farm that the gate was in bad condition. He also testified that some days before the loss of the animals the staple had fallen out and that one of the prongs was broken off. Another witness testified that a week or ten days prior to the injury complained of the staple had fallen out while he was in the act of lifting the hook, and that to the best of his recollection a prong of the staple was broken off at that time. He drove it in with a stone. Several witnesses testified that they had known the staple to be pulled out in a similar way and that they had driven it in several times. Witnesses' for the defendant testified that the break in the staple appeared to be fresh on the morning of the 17th of September. They further testified that the gate was frequently inspected and that the fastenings were always found to be in good condition. The findings of the jury upon this point are that the roadmaster of the division of the railway upon which the gate was located and the section foreman in charge of the section including the same had made inspections of the gate at various times, the latter having done so from two to four times a week for six weeks previous to September 16, 1893, and that at all such times he found the gate in apparently good condition; but in other findings the jury stated that the inspections made were “partial inspections ” ; that the staple in the gate-post appeared to be fast and in good condition, except upon close examination; and that the section foreman was a competent foreman, “ but not in this case.” The record shows that the inspections were chiefly made by shaking the gate as a test of the condition of the fastenings, but it does not appear that any great force was used in such tests. The foreman testified that he also examined the hook and staple at such times, and that he always found them in good condition. The twenty-sixth finding of fact is as follows :
‘ ‘ Did the horses of the plaintiff that were found dead upon the defendant’s right of way go on to said right of way through the gateway in question? Ans. We suppose they did.”
Some ten hours after the jurors had retired to deliberate upon their verdict the court recalled them, and over the objection of the defendant gave the following instruction, to which the defendant duly excepted :
“ If the jury finds for plaintiff, it is not conclusively bound in assessing the plaintiff’s damages by the opinions of the witnesses as to the value of the stock killed. While the opinions of witnesses as to the value of the stock killed are valuable in proportion to the candor, intelligence, experience and knowledge of the witnesses, yet such opinions are only to be considered in connection with the other testimony in the case, in the light of which and of its own general knowledge the jury should for itself determine the value.”
It is contended by counsel for plaintiff in error that the facts in the record do not show notice to the railway company of the defect in the fastenings of the gate nor a state of facts from which an inference of knowledge on that point would arise. In our view several facts in the record are opposed to this contention, namely, the general condition of the gate caused an increased strain on the fastening and made it always swing open when unfastened ; the staple had fallen out a number of times and the attention of the acting section foreman had been called to the condition of the gate. The findings of the jury that the inspections made were partial only, and that the section foreman was not competent, “in this case,” are claimed to be without support in "the testimony. It is readily apparent that the testimony of the foreman to the effect that he repeatedly examined the fastenings and found them in good condition and the testimony of other witnesses that the staple had fallen out several times are difficult to harmonize, and the jury may have adopted the view that the foreman did not make careful inspections of the fastenings. The case turns upon very minute points of evidence, but we are unable to say that the findings just referred to are wholly unsupported.
As to the contention based upon the admission of incompetent testimony concerning the value of the animals, we think it sufficient to say that one witness showed some qualifications to testify concerning such values, and that his testimony was received without objection. There was one objection made after he had answered a question, and the objection was overruled. Thereafter the question was repeated, and answered without objection.
The action of the court in recalling the jury and giving a further instruction was, we think, erroneous, under the decision in the case of Foster v. Turner, 31 Kan. 58, 1 Pac. 145; but it was error without prejudice to the rights of the defendant, for the verdict returned by the jury was in much smaller amount than might have been awarded under the testimony; and the instruction given related entirely to the testimony respecting the value of the animals.
It is also claimed that the court erred in refusing to allow White, the section foreman, to testify as. to whether or not the plaintiff, had ever called his attention to the fact that the gate was out of repair. It appears that when White was being examined as a witness for the defendant he was asked whether or not the plaintiff had ever spoken to him concerning the condition of the gate, and that he answered in the negative. In rebuttal, the plaintiff testified that he had called White’s attention to the matter prior to the time the animals were killed. Afterward White was recalled for further redirect examination, and was then asked by counsel for defendant if lie had made the statement testified to by the plaintiff. The court refused to permit.him to answer. We are unable to see error in the ruling. Other claims'of counsel do not require special mention.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wells, J.:
A condensed statement of such of the facts of this case as are necessary to an understand ing of the issues raised herein is as follows : On September 28, 1896, the defendant in error filed her petition in the district court of Wyandotte county, alleging, among other things, that on September 15, 1889, at the request and solicitation of Samuel F. Mather, said plaintiff went to live with said Mather at his home in Kansas City, Kan. that prior to said date the wife of said Mather had died, leaving him without any family; that he occupied a large residence which had been his home for many years, and at his home the plaintiff continued to live with him and performed for him services as housekeeper, nurse, attendant and constant companion until his death on June 1,1895 ; that said Mather during all of said time was old and feeble and required constant care and attention ; that the said Mather during said time frequently and repeatedly promised, without fixing the nature or amount, to compensate said plaintiff at his death for the services so performed; and that the same were worth $100 per month and had not been paid; and asking judgment therefor in the sum of $6850.
The answer of the defendant denied generally the allegations of the petition, pleaded a defect of parties and the pendency of another action, and also alleged that from time to time during the period the services mentioned in the petition are alleged to have been performed, and on account thereof, said Mather generously compensated her for such services by paying her large sums of money on her account; that in October, 1892, he conveyed to a sister, in trust for plaintiff, property valued at $3000 ; and in January, 1894, he also conveyed in the same manner to said sister another property, valued at $1500 ; and in June, 1894, he released mortgages on plaintiff’s property of $2000, gave her a check for $500, and willed her $500 ; and that since the death of said Mather the defendant herein, as executor of the Mather estate, had given her rent to the amount of $600, said payments altogether largely exceeding the value of the services rendered. The plaintiff, in reply, denied every allegation of new matter in said answer.
Upon the issues thus joined the case was tried to a jury, a verdict returned in favor of the plaintiff for $733, and judgment rendered accordingly.
There are five specifications of error discussed in the brief of the plaintiff in error, but we shall consider such of them only as seem to be necessary to a decision of this proceeding in error.
First. The court erred in permitting the plaintiff to testify as to transactions between the deceased, Mather, and herself with respect to the $500 check, 'and in refusing to strike out such evidence.
The plaintiff, in her own behalf, on direct examination, testified, over the objection and exception of the defendant, that a certain $500 check was given her by Mather for rent collected belonging to a sister of plaintiff. On cross-examination, she stated, in substance, that the only way she knew what it was given for was what the doctor (Mather) told her. The defendant then asked to have this evidence stricken out, which was refused, the court saying : “I don’t think you can call out incompetent evidence on cross-exanination and then take advantage of it.”
Section 333 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, §4585), provides:
“No party shall be allowed to testify in [his] own behalf in respect to any transaction or communication had personally by such party with a deceased person when the adverse party is the executor ... of such deceased person.”
That there was a violation of the above provision in this case seems to us clear. With the witness’s intimate relations with Doctor Mather in his lifetime and her knowledge of his business affairs, it seems reasonable to suppose that she may have known what the check was given for from a source that would make it competent evidence, and the court was right in allowing her to answer the question, but when on cross-examination she stated that the only way she knew it was that the doctor told her so, its incompetency became apparent and it should have been stricken out.
We are also of the opinion that plaintiff’s second allegation of error must be sustained. The defendant introduced evidence showing that the plaintiff was the owner of a house and lot in Kansas City, Mo., the title of which stood in the name of her mother, and upon which jvas a mortgage to secure a note given by the mother for money borrowed by plaintiff, which note matured June 6, 1894, at which time the sum of $1600 principal and $56 interest would be due thereon. A few days before the maturity of this note Doctor Mather went to the office of the company which held the note and mortgage as agents for the owner, and in presence of plaintiff gave the company a check drawn by Meyers Brothers, of St. Louis, payable to hi-s order, for $1400.10 (which check had been given to Mather in payment of a note executed in 1888 by Meyers Brothers to him), also the individual check of said Mather for $182.90 drawn on the Midland National Bank, of Kansas City, Mo., and the company thereupon delivered the note and mortgage, to Mather and he released it of record.
After the defendant had rested, the plaintiff was recalled, and testified in rebuttal, among other mat ters, in relation to this transaction in regard to the $1600 mortgage, and was asked, “ Now, whose money actually paid off that loan?” and was allowed, over objection of the defendant to answer, “ Mine.” The question called for a conclusion pure and simple ; the answer could throw no light upon the transaction in controversy; it explained nothing, and could only tend to complicate instead of settle the question at issue.
Our conclusion upon the foregoing propositions makes a new trial of the case necessary, and we shall not discuss the other errors alleged.
The judgment of the district court is reversed, and a new trial directed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by William W. Letson against Franklin Guess, J. J. Figley, Thomas Stanley, James D. Stanley, and H. W. Johnson, for the recovery from the defendants as obligors on a bond the value of the use of certain lands from June 10, 1890, to August 27, 1894. A trial was had, which resulted in Letson recovering a judgment for the value of the use of the lands, as found by the jury, in the sum'of $405.15. There was a motion for new trial filed and overruled, and this proceeding is brought to reverse the judgment of the trial court.
The principal facts out of which this controversy arose are as follows: Letson, Briggs, and Linn,- on, June 10, 1890, in an action then pending against Franklin Guess and others, recovered judgment, as follows: “That the plaintiff recover possession of said land above described from the said defendants, and also recover of and from the said defendants the sum of $180, their damages sustained by the wrongful withholding of the possession thereof, and all costs of suit herein, taxed at the sum of $-, for the recovery of which land, and the recovery of the damages so sustained, and costs of suit, let execution issue.” The trial court made an order fixing the amount and conditions of a bond to stay execution upon the judgment for 120 days, in order to permit the preparation ■of a record for review, but made no' order fixing the terms of a supersedeas bond. Guess prosecuted proceedings by petition in error in the supreme court to reverse the judgment, which was dismissed without a hearing upon the merits. He caused to be executed and approved by the clerk of the district court and filed on the 8th day of September, 1890, his bond, with Figley, Stanley, Johnson and Stanley as sureties, in form as follows:
“bond fob, stay of execution.
“Know all Men by these Presents, That we, Franklin Guess, as principal, and J. J. Figley, T.W. Stanley, H. W. Johnson, as sureties, our heirs and executors, are firmly bound unto the above-named L. M. Briggs,- W. W. Letson and H. C. Linn in the sum of four hundred ($400) dollars, and the rental value of the land in controversy, hereinafter described, and any waste that may be committed on said land through the fault of said Franklin Guess during the continuance of this bond, to the payment of which, well and truly to be made, we bind ourselves, our heirs and executors with this condition : Whereas, the said L. M. Briggs, W. W. Letson and H. C. Linn did on the 10th day of June, 1890, as plaintiffs in the above-entitled action, obtain judgment against the said Franklin .Guess, J. J. Figley, Thomas Stanley and Thomas Smith as defendants in the above-entitled action in the sum of one hundred and eighty ($180) dollars, and the possession of the northeast quarter of the northeast quarter of section six (6), town five (5), range seventeen (17), in Atchison county, Kansas, in the above-entitled action in the above-entitled court, and whereas the said Franklin Guess intends to appeal from said judgment to the supreme court of the state of Kansas; now, if the said Franklin Guess fails to maintain his said appeal and pays the said judgment and performs the conditions thereof, and commits no waste on the said real estate, or if the said Franklin Guess maintains his appeal, then in either of said cases this bond is to be null and void, otherwise of full force and effect.”
The defendant in error Letson succeeded to the rights of his coplaintiffs below, Briggs and Linn, and the 10th day of August, 1894, received possession of the land described in the judgment. The sureties on the bond paid the money judgment and costs in the sum of $324.68, all of which, except eighty cents, was paid prior to the commencement of this suit. It is very difficult to determine what the parties to this bond intended. This bond, as all similar bonds, consists of two parts, the penalty and the condition. The penalty expresses the limit of liability, and the condition states the circumstances under which a recovery may be had to the extent of the liability. The words “rental value of the land in controversy hereinafter described,” should be construed as a condition of the bond, to be enforced within the limits of the penalty of $400.
Sureties are favorites of the law; ambiguities and uncertainties should be resolved in the'ir favor ; they cannot be held beyond the strict letter of their undertaking. (Henrie v. Buck, 39 Kan. 381, 18 Pac. 228; Freeman v. Hill, 45 id. 435, 25 Pac. 870; McCarthy v. Holden, 54 id. 313, 38 Pac. 261.) It is apparent that, the intention of the sureties was to obligate themselves to the extent of. $400, and it is doubtful if they intended to obligate themselves beyond this. The words “ the rental value of the land in controversy ” have no place in the penalty of the bond. The statute provides only for bonds with a money penalty. The bond says: “To the payment of which, well and truly to be made, we bind ourselves, our heirs and executors with this condition.”
This instrument as a whole, construed with refer ence to the statutes, the rights of sureties, and the language in which the parties bind themselves, “to the payment of which, well and truly to be made, we bind ourselves,” must be read as a bond with a penalty of $400, conditioned to pay and perform the conditions of the judgment, commit no waste and pay the rental value of the premises in controversy if the judgment be affirmed. The sureties had paid $324.68 of the penalty, and judgment should have been rendered against them only for the difference between that sum and the penalty of the bond, to wit, the sum of $75.32.
While the bond in question is not in all respects a statutory bond, as a supersedeas to stay execution upon the judgment as an entirety, it was sufficient to stay execution upon the money judgment. It is therefore supported by a valuable consideration. The bond is good as a common-law bond to the extent of the liability of the parties named. No judgment could be entered against the sureties on the bond, upon the pleadings, admissions, and evidence, in excess of the amount of the penalty less the payment made by them. The judgment was excessive.
The judgment will be reversed, and remanded for further proceedings not inconsistent with the views herein expressed.
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The opinion of the court was delivered by
Milton, J. :
In this action the defendants in error obtained judgment against the plaintiff in error upon thirty-two county warrants. The record shows that practically all of the warrants were dated April 13, 1892, and were presented for payment to the county treasurer on the following day. Not having funds, the treasurer indorsed the warrants, “Presented and not paid for want of funds.” This suit was brought' on April 14, 1897. Three of the warrants were not presented for payment until about six months from dates of issue. The defendant below set up the statute of limitations as one of the defenses to each cause of action. Judgment was rendered in favor of plaintiffs below in the sum of $1200.51.
The question presented for decision in this court is whether the- statute of limitations commences to run from the date of the issuance of the county warrants or from the date of presentation thereof to the county treasurer for payment. By section 6 of chapter 249, Laws of 1891 (Gen. Stat. 1897, ch. 50, § 6 ; Gen. Stat. 1899, § 5830), it is made the duty of a county treasurer to pay on presentation any warrant properly drawn on any fund in his custody by virtue of his office, when there is sufficient money in his possession belonging to such fund to pay the warrant. By section 7 of that chapter it is provided that, in case there is not sufficient money in the hands of the treasurer to pay any warrant when presented, he shall indorse thereon a proper registered number in the regular order of its presentation, and the words “Presented and not paid for want of funds,” with date, and shall sign said indorsement; and shall record in his warrant register certain data respecting each warrant in the order of its presentation as shown by his record. Section 8 of said chapter provides for payment of the registered warrants from funds coming into the treasurer’s hands, upon published calls for the redemption of such warrants as he can pay, at the times stated in the. statute.
Construing in a general way the foregoing provisions, the supreme court has held that “an action cannot be maintained upon a county warrant until the warrant has been presented at the county treasury and payment thereof has been refused.” (Railroad Co. v. Kearny County, 58 Kan. 19, 48 Pac. 583.)
It thus appears that by the'implied terms of the contract embodied in a county warrant the obligation to pay arises only upon demand for payment. The-statute of limitations provides :
“ Sec. 12. Civil-actions other than for the recovery of real property can only be brought within the following periods after the cause of action shall have accrued . . . : First, within five years : An action upon any agreement, contract or promise in writing.” (Gen, Stat. 1897, ch. 95, § 12 ; Gen. Stat. 1899, §4262.)
The important inquiry in the present case is, "When did the plaintiff’s cause of action accrue? It seems to be settled law that, where a demand is necessary to perfect a right of action, the statute runs from the date of demand. (13 A. & E. Encycl. of L. 721, and note.) In B’k of Brit. No. Am. v. Mer. Nat’l B’k of N. Y., 91 N. Y. 106, it was held that demand for payment of a certified check was a condition precedent to the right of action to recover thereon, and that the statute of limitations began to run from the date of such demand. In Ganley v. Troy City National Bank, 98 N. Y. 487, the court said:
“It is universally true that the statute of limitations does not commence to run upon a cause of action upon contract until it has accrued, and that where a demand is necessary before an action can be commenced the statute does not begin to run until after demand..”
In view of the foregoing, it must be held that the plaintiffs’ cause of action upon the warrants did not arise until the date of their presentation for payment and that such cause of action was not barred.
We have yet to consider a question which arises from the delay of the plaintiffs in presenting certain of the warrants for payment. It is a correct general proposition of law that a plaintiff cannot defer the running of the statute of limitations by his own laches.
“In most states, however, the statute will not run until he has made his cause of action perfect, but his right to do this is held to be lost unless exercised within a reasonable time, and what time is reasonable is often determined by analogy to the term prescribed by the statute of limitations.” (13 A. & E. Encycl. of L. 726, 727.) The supreme court of this state has, iu a well-considered case, stated its conclusion upon the question before us in the syllabus of the case of A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kan. 628, 14 Pac. 271, as follows :
“ Where preliminary action is essential to the bringing of an action upon a claim such as is required of the township trustee in chapter 105 of the Laws of 1876, and such precedent action rests with the claimant, he cannot prevent the operation of the statute of limitations by long and unnecessary delay in taking such action; but the statute will begin to run in a reasonable time after he could by his own act have perfected his right of action ; and such reasonable time will not in any event extend beyond the statutory period fixed for the bringing of such an action.”
In the light of the above decision, we hold that the warrants in question were presented within a reasonable time after the issuance of the same, and that the statute of limitations did not begin to run prior to the date of their presentation for payment. The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
McElroy, J. :
The appellant, Frank Tulip, was prosecuted in the district court of Cloud county upon an information, duly verified, containing five counts. The first count reads :
“ That on or about the 27th day of May, A. d. 1899, in the county of Cloud and state of Kansas, one Frank Tulip, whose true and correct name is to this informant unknown, if above is not correct, then and there being, without having first duly procured according to law, from the probate court of Cloud county, Kansas, a permit to sell intoxicating liquors for medical, scientific and mechanical purposes, did then and there unlawfully sell and barter to one Minard Doak spirituous, malt, vinous and fermented and other intoxicating liquors, contrary to the law in such cases made and provided.”
The second count of the information was the same, except that it charged a sale on the 7th day of June, 1899, made to one L. F. Bradley; the third count charged a sale made on the Sd day of June, 1899, to one-; the fourth count charged a sale made on the 9th day of June, 1899, to one L. F. Bradley; and the fifth count charged him with keeping and maintaining a nuisance.
The defendant declined to plead, and a plea of not guilty was entered by direction of the court. At the trial the county attorney dismissed the third count, the court dismissed the fifth, and the case was submitted to the jury upon the first, second and fourth counts of the information. The jury returned a verdict that the defendant was guilty of the sale and offense relied on under the first and second counts of the information. The defendant’s motion for a new trial was overruled. The court passed sentence upon the defendant Frank Tulip, that he be confined in the county jail of Cloud county for the term of sixty days ; that he pay a fine of $200, and the costs of the prosecution; and that he be confined in the jail until the fine and costs are paid.
The defendant, as appellant; presents the record to this court for review and alleges error in the proceedings of the trial court. There are thirty-eight formal assignments of error. They present, however, but few questions for the consideration of the court. These questions we will consider, so far applicable to the first and second counts of the information, in their order.
First. That the court erred in overruling the defendant’s motion to require the state to make the first four counts of the information more definite and certain. The appellant insists that neither of these counts alleges “in issuable form” that the defendant had no permit to sell liquors. We do not think the information is open to this objection. It might have been in better form if the word “duly” had been stricken out of the information ; however, this is not a fatal objection. The word “duly” as used is superfluous and may be so treated. We think it sufficiently stated in each count that the defendant had no permit to sell intoxicating liquors.
It is also contended that these counts are bad for the reason that they allege a “sale” and “barter,” and therefore charge two violations of the prohibitory law, the selling and bartering of liquors. This contention is not tenable. See The State v. Schweiter, 27 Kan. 499.
Second. That the court erred in overruling defendant’s challenge to certain jurors for cause. The defendant challenged jurors Harrington, Price, Tyner and A. S. Harrington for cause. He contends that these jurors were selected from the assessment rolls of 1899, instead of the assessment rolls of 1898. This was a question of fact determined upon the evidence by the trial court against the contention of defendant. From the fact that the court overruled the objection it appears that the jurors were selected from the proper assessment rolls, and there is some evidence to support this conclusion. The court is, therefore, precluded by the findings of the trial court from further inquiry in this respect. Jurors Harrington and Price were ministers of the gospel, Tyner was sixty-three years of age, and A. S. Harrington was a school-district clerk. Section 17 of chapter 94, General Statutes of 1897 (Gen. Stat. 1899, §3694), reads:
“The following persons shall be exempt from serving as jurors, to wit: All persons holding office under the laws of the United States or this state; attorneys and counselors at law; physicians, ministers of the gospel, professors and teachers of colleges, schools and other institutions of learning, ferrymen, all members of any company of firemen organized according to law, all persons more than sixty years of age; and all other persons exempted by any other law of this state from serving on juries.”
While it appears that these jurors were exempt from jury service — two as ministers of the gospel, one as an officer, and the other as being over sixty years of age — it has, however, been held that these exemptions are personal privileges, and nothing more. (Moore v. Cass, 10 Kan. 288; The State v. York, 7 Kan. App. 291, 53 Pac. 838 ) The challenges for cause are specified in section 280 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, §4533), as follows:
“If there shall be impaneled for the trial of any cause any petit juror who shall have been convicted of any crime which by law renders him disqualified to serve on a jury; or who has been arbitrator on either side relating to the same controversy; or who has an interest in the cause ; or who has an action pending between him and either party; or who has foi’merly been a juror in the same cause ; or who is the employer, employee, counselor, agent, steward or attorney of either party; or who is subpoenaed as a witness ; or who is of kin to either party ; or any person who shall have served once ali’eady on a jury as a talesman on the trial of any cause in the same court during the term, he may be challenged for such causes.”
The challenges for cause were properly overruled.
Third. That the court erred in the admission of testimony. Complaint is here made that the trial court permitted witnesses to give their conclusions and answer leading questions. There is little, if any, merit in this contention. There was no incompetent testimony admitted, of which complaint is made, which could in any manner prejudice the rights of the defendant.
Fourth. That the court erred in refusing to permit defendant sufficiently to cross-examine witnesses. This contention is likewise without merit. The defendant was permitted to cross-examine witnesses at great length, and there is no just cause for complaint in this regard.
Fifth. That the court erred in'refusing to instruct the jury as requested by the defendant. Complaint is made that the court erred in refusing to give the first, eighth and ninth instructions requested by the defendant. The first and eighth instructions requested by the defendant were given in the court’s general charge, so far as applicable. As to the ninth instruction, the testimony is not preserved in the record and we are unable to say whether this instruction was proper or not. There is no evidence in the record before us to justify the court in giving it. No reversible error can be predicated upon the action of the court in refusing to give it.
Sixth. That the court erred in its instructions to the jury. Herein complaint is made that the instructions are inconsistent. In its general charge the court instructed the jury, among others things :
“ Though testimony has been offered and received as to other alleged sales than those relied on for conviction, yet this testimony as to other sales than those relied on, for whatever purpose offered, whether in support of a nuisance or otherwise, cannot be considered in determining the guilt of the defendant of these on which the state has elected to rely for a conviction.” • •
The appellant concedes that this instruction was correct, but complaint is made of the further instruction as follows:
“You are the exclusive judges of the evidence and of what is shown thereby, and in determining this and the weight you will give to the testimony of the various witnesses, you will take into consideration their interest in the result of the suit, the probability and improbability in which they testify, their appearance and demeanor on the stand as well as all facts and circumstances shown. If you believe from the evidence that any witness has wilfully testified falsely to any material matter, then you are at liberty to disregard all such witness’s testimony, or, in other words, to give it such weight as under all circumstances you think it is entitled to ; and in determining the question as to whether the defendant is guilty of any of the charges upon which the state relies for conviction, you will consider the evidence and all the evidence.”
The appellant contends that the expressions, “as well as all facts and circumstances shown,” and “you will consider the evidence and all the evidence,” are in conflict with the former instruction. These statements should have been confined to the evidence offered in support of, or tending to support, the different counts of the information upon which the state elected to rely for a conviction. If this was the only error in the case, however, we would be inclined to regard it as immaterial, inasmuch as the trial court instructed the jury as to what evidence could properly be considered in determining the guilt of the defendant upon the various counts.
The jury, after twenty-four hours’ deliberation, were brought before the court, when the following proceedngs were had:
“Ques. by the court; The sheriff tells me that you have asked to be brought into court. What is it you want ? Juror : Your honor, as foreman of the jury, I wish to state, as the case now stands, it is hopeless for us to attempt to reach a verdict. One of the jurors cannot understand why we should throw out two of the counts and not throw them all out. We cannot make him understand why that is the case.
“ Court: I cannot take that statement at all at this time, that it is hopeless to attempt to arrive at a verdict. A lawsuit at best is an expensive affair to both parties, and when a case has been tried as fully and fairly as this one has, the jury certainly ought to make some earnest effort to reach an agreement. . . . As far as questions are concerned, if there are any questions of law the court is here and will answer, or he will try to answer any proper questions that any juror may desire. If any juror wants to know why those grounds or counts were dismissed I will tell him. The fifth count of the information was dismissed because it was not as strictly formal as it might be, and there was also some question as to the description of the place where the alleged sales were supposed to have taken place. . . . If the jury wish any instructions as to the law in the case, the court will give it. That is what the court is here for. As to the questions of fact, those are for the jury to determine. Where you have a jury of good, fair, honest men, good responsible men, and the case has been fully and fairly tried, as well as the court knows how to try it, you ought to try and arrive at a verdict. Of course, no one ought to be compelled to agree against his own judgment, but when a case has been tried by twelve good, men, you ought to make a strong effort to reach a verdict and have it ended. Another trial can probably prove no more or further than has been proved. . '. . And although you have been out all night and feel anxious to be relieved, under all the circumstances I don’t feel that I can discharge you. . . .
“I do n’t want to compel, neither is it the privilege of the court to compel, jurors to find a verdict one way or the other. What the court does want to do is to try the case fully, on the trial, as to the evidence, and instruct the jury fully as to the law. When the court does this, the court wants the jury to decide as to the facts. ... I feel that further consideration will be required. If there is any question as to the law, ask it and the court will instruct you. If there is any question as to the evidence, ask it and the court will have it read to you. In view of the time that it has taken to try this case, I don’t feel like discharging you now, and therefore I insist and direct you to'consider your verdict further. I don’t want to do an injustice to you, and when it comes night, instead of keeping you up and confined in a small room, I will try and make some respectable arrangement for your personal convenience. I feel that further efforts ought to be made to reach an agreement in this case. If there is any question on the instructions of the court, the courtis here to give it.”
To all of which the defendant objected and excepted. The jury retired for further deliberation, and thereafter they were brought back into the courtroom by request of the court.
“By the court: I called you back for this reason. There is some question as to the question you asked when you were in here a few moments ago. I understood the question to be, as asked by the foreman, as to why two of the counts were dismissed, and it seems that others think that it was whether the jury were required to find on three, or two, or one. ... I would like to ask the jury what the question was.
“A juror: As to why we should throw out two of the counts and not throw them all out.
“Court: That should have been the question. If the evidence justifies, you should convict under the three counts. If the evidence warrants the conviction under two counts and not under three, you should convict under the two counts, and if the evidence warrants the conviction under only under one count, you should convict only as to the one count; if not as to either count, you should acquit. If there is no evidence to support any of the counts, then you should acquit.
“ Q,ues. by juror : What are we going to do with a man who claims he do n’t believe any of the witnesses at all?
“Court: I suppose you can argue with him. That is all I know to do. I do n’t suppose there is any man but who will act with some reason. ... I put you in the box because you are twelve decent, sensible men, and I presume you will act that way, and I do n’t presume anything to the contrary. If you ask me what you are going to do with any man who acts the fool, but I do n’t suppose that you are, any of you, that kind of men, I suppose that you are twelve honest, conscientious men, and will act conscientiously according to your best judgment. ... I have answered fully as I understand you. If the question is as to the five counts, two are dismissed for the reasons I 'have stated. As to the three remaining counts, if the evidence warrants, you can find under the three, if the evidence warrants under two, and not three, under two, and if only under one, and not two or three, you can find guilty of one. If the evidence does not warrant it, find none. ... If there is nothing further, you may retire with the officer.”
. Thereupon the jury retired to their room and on the same day, about two o’clock p. m., returned into court their verdict.
The state relied for a conviction under the first count of the information upon the alleged sale of a glass of beer, made by the defendant to the witness Minard Doak, on the 27th day of May, 1899, in the presence of W. E. Strait; under the second count, upon the alleged sale of two glasses of whisky, made by the defendant to L. F. Bradley, on the 7th day of June, 1899, in the presence of John T. McCall; and under the fourth count, upon the alleged sale of a half-pint of whisky, made by the defendant to L. F. Bradley, on the 9th day of June, 1899. The first question asked by a juror indicates that a majority of the jury, at least, desired to throw out two counts ; this would leave but one for consideration. After the court had ully instructed the jury in regard to this matter,- a juror asked, “ What are we going to do with a man who claims he do n’t believe any of the witnesses at all?” . Whether this had reference to the witnesses upon the first, second or fourth counts, or to all of them, does not appear. Thereupon the court used the objectionable language above set out. This language, in our opinion, materially reflected upon the intelligence of the juror. The defense to the charge in the fourth count appears to have been that it was not supported by any testimony worthy of belief. The jury all appear to have come to that conclusion; they found defendant not guilty as to that count. The defense to the second count appears to have been the same. This charge rested upon a sale of two glasses of whisky made to the same party. If the juror was hesitating to believe any witness who testified as to the alleged sale under the second, or fourth count, in the one case, he was justified by the opinion of other jurors, and in the other by the theory of the defense. Plowever, if he had all of the witnesses in mind who testified, and, if acting conscientiously, he was only exercising his prerogative as a juror. The jury are the sole judges of the evidence, its weight, and the credibility of witnesses. This practice of calling in jurors and lecturing them is not commendable; the practice is fruitful of much harm. (The State v. Rogers, 56 Kan. 362, 43 Pac. 256.)
The courts of last resort frequently set aside verdicts and order a new trial for the reason that the trial court used language not so objectionable a,s that used in this case. (The State v. Bybee, 17 Kan. 462; The State v. Rogers, supra; State v. Iwanhoe, 35 Ore. 150, 57 Pac. 317; Randolph v. Lampkin, 90 Ky. 552, 14 S. W. 538, 10 L. R. A. 87; Whitelaw v. Whitelaw, 83 Va. 40, 1 S. E. 407; Cranston v. N. Y. C. & H. R. R. R. Co., 103 N. Y. 614, 9 N. E. 500; McPeak v. The Mo. Pac. Ry. Co., 128 Mo. 617, 30 S. W. 170; Southern Insurance Co. v. White, 58 Ark. 277, 24 S. W. 425; Sargent v. Lawrence, 16 Tex. Civ. App. 540, 40 S. W. 1075; Railroad Company v. Barlow, 86 Term. 537, 8 S. W. 147; Richardson v. Coleman, 131 Ind. 210, 29 N. E. 909.)
And the court further misdirected the jury in this : “If there is no evidence to support any of the counts, then you. should acquit.” In this the court misdirected the jury. One may not be convicted simply because there is. evidence to support some of the counts. A defendant may stand upon the presumption of his innocence until his guilt is established by competent evidence beyond a reasonable doubt.
Prom what we have said,, it follows that the court erred in overruling the defendant’s motion for a new trial. The judgment must be reversed and the case remanded for a new trial.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Frank P. Tarantino, of Kansas City, Missouri, an attorney admitted to the practice of law in Missouri in 2000 and in Kansas in 2001. Respondent’s license to practice law in the state of Kansas has been suspended since October 6, 2003, for failure to pay the annual attorney registration fee and failure to pay the annual continuing legal education fee.
On June 29, 2004, respondent was disbarred by order of the Missouri Supreme Court. A complaint had been filed by a client against the respondent. The disbarment order was the result of the respondent’s failure to file an answer to the resulting formal information charging him with violation of the Missouri Supreme Court Rules relating to attorney discipline.
On April 11, 2007, the office of the Disciplinary Administrator filed a formal complaint against respondent alleging that the respondent violated Rule 8.4(d) of the Kansas Rules of Professional Conduct (KRPC) (misconduct) (2007 Kan. Ct. R. Annot. 559). The complaint arose from the Missouri disciplinary proceedings. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 31, 2007. The respondent did not appear.
Applying Kansas Supreme Court Rule 202 concerning reciprocal discipline (2007 Kan. Ct. R. Annot. 257), and based on the documents filed in the Missouri disciplinary proceeding, the hearing panel concluded that the respondent violated KRPC 1.3 (diligence) (2007 Kan. Ct. R. Annot. 398); KRPC 1.4 (communication) (2007 Kan. Ct. R. Annot. 413); KRPC 8.1(b) (disciplinary matters) (2007 Kan. Ct. R. Annot. 553); and Supreme Court Rule 207(b) (duty to cooperate) (2007 Kan. Ct. R. Annot. 288).
The panel unanimously recommended that the respondent be disbarred from the practice of law in the state of Kansas. The respondent did not file exceptions to the final hearing report.
THE MISSOURI DISCIPLINARY ACTION
Our Supreme Court Rule 202 provides in pertinent part:
“A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.” 2007 Kan. Ct. R. Annot. 258.
Before proceeding further, certain aspects of the particular process resulting in respondent’s Missouri disbarment need to be set forth and discussed in conjunction with Rule 202.
The Missouri rules relative to discipline of attorneys are set forth in Missouri Supreme Court Rule 5. Highly summarized as pertinent here, the rules provide for a basic procedure similar to our Kansas procedure. When a complaint is filed, there is an investigation which may result in a formal information being filed against the respondent. See Missouri Supreme Court Rules 5.08,5.09. The rules require the respondent to file a response to the information. See Missouri Supreme Court Rule 5.13. After a response is filed, a hearing will then be held before a disciplinary hearing panel. At the hearing, evidence is presented and the panel prepares a final hearing report as to the underlying facts, professional misconduct established, and recommended discipline. See Missouri Supreme Court Rules 5.14, 5.15, 5.16. This report is forwarded to the Supreme Court for ultimate resolution. See Missouri Supreme Court Rule 5.19.
In the case before us, an alternative procedural process was followed. Missouri Supreme Court Rule 5.13 provides:
“The information shall be accompanied by a notice that the respondent is to file an answer or other response with the chair of the advisory committee, and serve a copy on the counsel of record for the informant and the chief disciplinary counsel, within 30 days after the service of the information on the respondent. If an answer or other response is not timely filed, the information shall be filed in this Court as an information with notice of the default.
“The failure to file an answer or other response to the information timely shall he deemed as consent by the respondent for this Court to enter an order disbarring respondent without further hearing or proceeding.”
Respondent did not file a timely answer or response. A notice of default under the rule was filed with the court. As the direct result of the filing of the notice of default and a copy of the information, the Missouri Supreme Court entered the following order on June 29, 2004:
“ORDER
“The Chief Disciplinary Counsel having filed an Information advising this Court of its findings, after investigation, that there is probable cause to believe Respondent, Frank P. Tarantino, is guilty of professional misconduct and having filed with said Information, pursuant to Rule 5.13, a Notice of Default, notifying the Court that Respondent, Frank P. Tarantino, failed to timely file an answer or request for hearing within the time required although Respondent was served pursuant to the provisions of Rule 5.18 and Rule 5.11 and, therefore, pursuant to Rule 5.13, Respondent is in default; and
“It appearing Respondent is guilty of professional misconduct and should be disciplined;
“Now, therefore, it is ordered by the Court that the said Frank P. Tarantino, be, and he is hereby disbarred, that his right and license to practice law in the State of Missouri is canceled and that his name be stricken from the roll of attorneys in this State.
“It is further ordered that the said Frank P. Tarantino, comply in all respects with 5.27 — Notification of Clients and counsel.
“Costs taxed to Respondent.”
DISCUSSION
Notice of respondent’s Missouri default disbarment was forwarded to the Kansas Disciplinary Administrator. The Missouri default procedure and resultant order present some procedural problems for a reciprocal disciplinary action in Kansas. The Missouri order only finds “probable cause to believe” the underlying misconduct occurred. The disbarment was based on the “probable cause” statement and failure to file a timely answer. The failure to file an answer lacked in Rule 5.13, wherein respondent was, by such inaction, deemed to have consented to disbarment.
After the Missouri order of disbarment was forwarded to the office of the Kansas Disciplinary Administrator, the matter was referred to Dave Wood, an investigator for that office. After Wood made contact with respondent, Wood received a fax from respondent dated January 3, 2005, which contained the following cover page:
“Dear Mr. Wood:
“Pursuant to your request, please find a copy of my answer to the Information pending in the Supreme Court of Missouri which follows this face-sheet. I am currently taking appropriate steps to set aside the default entered in that case. When you have had a chance to review same, please contact me regarding . . . your determination. I will keep you apprised of Missouri’s determination. I have since registered my current address with the Kansas Bar Registry of Attorneys, have paid all dues and updated my continuing legal education requirements. Please let me know if you require further information at this time, thank you for your kind attention.”
The pleading attached thereto is captioned “Respondent’s Motion to Set Aside Default Judgment.” The first line thereof states: “COMES NOW Frank P. Tarantino, and for his Motion to set aside the Default Judgment entered in the above-captioned matter, states as follows.” The balance of the document is in the format of a response to the Missouri Information.
No further action was taken by the Kansas Disciplinary Administrator’s office until April 11, 2007, when the formal complaint was filed herein. The long delay between November 2005 and April 2007 was apparently the result of the Disciplinary Administrator’s office taking respondent at his word that he would be filing a motion to set aside the default judgment. Respondent was thereby granted the opportunity to seek the setting aside of the default disbarment. Obviously, if respondent were to be successful, the ultimate result in the Missouri proceeding could be different. If the Missouri complaint were to be ultimately dismissed, there would be no basis for any Kansas proceeding. However, the respondent took no such action. As stated in the Kansas formal complaint:
“7. . . . However, Respondent never filed the Motion with the Missouri Supreme Court and has taken no further action with regard to the disbarment. . . .
“8. The Respondent by this conduct violated Rule 8.4[d] of the Kansas Rules of Professional Conduct.”
Further, respondent’s statement in the cover page of the fax that respondent had “paid all dues and updated my continuing legal education requirements” was untrue. Respondent is not in full compliance and remains suspended.
Respondent filed no response to the formal complaint herein, did not appear before the panel’s hearing thereon, and did not appear before this court on our scheduled hearing herein. The record reflects all requirements of notification were satisfied. Failure to file a response and failure to appear before this court are in themselves violations of our rules (Supreme Court Rule 211[b] [2007 Kan. Ct. R. Annot. 304]) and Supreme Court Rule 212[d] [2007 Kan. Ct. R. Annot. 317].)
CONCLUSION
After careful consideration, we conclude the final hearing report’s findings of fact and conclusions of law relative to the underlying Missouri claims of misconduct and their Kansas counterparts were inappropriate as such misconduct was not charged in the Kansas formal complaint nor did the Missouri Supreme Court determine that such misconduct occurred. However, it has been established by clear and convincing evidence that respondent was disbarred in Missouri for misconduct in failing to file a timely response to the Missouri information and that, by Missouri Supreme Court Rule 5.13, the effect thereof is consent to disbarment by the Missouri Supreme Court. Accordingly, that order of disbarment is valid and satisfies the grounds for reciprocal discipline set forth in Supreme Court Rule 202, which provides that a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall conclusively establish the misconduct for purposes of a disciplinary proceeding in Kansas.
Respondent’s representation that he would seek to set aside the Missouri default disbarment was untrue, although he has been given ample time to seek such relief. Such misrepresentation is a violation of Supreme Court Rule 8.4(d) (2007 Kan. Ct. R. Annot. 559) as charged in the formal complaint. As previously noted, fail ure to file a response to the Kansas formal complaint and to appear before this court constitute additional misconduct. We further conclude the appropriate discipline to be imposed is indefinite suspension with the special condition that no application for reinstatement will be considered unless accompanied by proof that respondent has been reinstated to the practice of law in Missouri.
It Is Therefore Ordered that Frank P. Tarantino be indefinitely suspended from the practice of law in the state of Kansas, effective die date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261).
It Is Further Ordered 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
Luckert, J.:
This case raises the question of whether the recreational use exception in the Kansas Tort Claims Act (KTCA), K.S.A. 2007 Supp. 75-6104(o), grants immunity to this public school district for alleged ordinary negligence that resulted in injury to Kevin D. Poston as he walked away from the doors of the school’s gymnasium to exit the building via the school’s commons while recreational activities were in progress in the gymnasium. We conclude the exception applies because the commons was connected to the gymnasium by plan and was an integral part of the recreational use of the gymnasium.
On Januaiy 6, 2003, Poston arrived at the Altoona, Kansas, middle school to pick up his stepson from basketball practice. The middle school is operated by Unified School District No. 387 (U.S.D. No. 387), Altoona-Midway, in Wilson County, Kansas. The south doors of the school opened into the commons, and double doors led from one side of the commons to the gymnasium.
Poston entered the school’s south doors and walked through the commons to one set of gymnasium doors. He let his stepson know he was there to pick him up and then turned to leave. As Poston was exiting the school through the south doors, one of the door brackets — a closing mechanism — came loose and fell on his head.
Poston filed a petition in which he claimed U.S.D. No. 387 was negligent for allowing the door hinge to become loose and failing to warn him of the danger. U.S.D. No. 387 responded by filing a motion for summary judgment, arguing that the school district was immune from liability under the recreational use exception to the KTCA. See K.S.A. 75-6101 et seq. U.S.D. No. 387 contended that Poston’s injury resulted from the use of public property intended or permitted to be used as an “open area” for purposes of recreational use immunity.
Poston responded to the summary judgment motion by stressing the nonrecreational uses of the commons, specifically its daily use as a cafeteria and as a point of access to many areas of the school. He argued the commons was not planned for recreational use and was not a “necessary and integral part” of the gymnasium. Rather, he contended, the use of the commons for recreational purposes was merely incidental.
In its memorandum decision, the district court found that recreational use immunity, as codified at K.S.A. 2007 Supp. 75-6104(o), applied. Recognizing that Poston’s injury occurred in the commons and not the gymnasium itself, the court found this of no great significance. Although the commons was not the exclusive means of access to the gymnasium, the court found the commons was a “transitional area” from outside the school into the gymnasium, as described in Robison v. State, 30 Kan. App. 2d 476, 43 P.3d 821 (2002). Thus, the court concluded the commons was “of such a nature or character as to make it an appendage to, and therefore a part of, the gymnasium which is a recognized recreational use area.”
The district court further determined the commons was an “integral part” of the gymnasium, as described in Wilson v. Kansas State University, 273 Kan. 584, 590, 44 P.3d 454 (2002). This finding was justified, according to the district court, because it was undisputed that the commons was used for a variety of purposes related to the gymnasium’s recreational purposes, including selling concessions and tickets during school and nonschool sporting events. Finding no material factual issues in dispute, the district court granted U.S.D. No. 387’s motion for summary judgment.
Because of its determination, the district court declined to address the secondary issue of whether the commons itself constituted a recreational use area for purposes of the KTCA immunity provision.
On direct appeal, the Court of Appeals panel affirmed the district court in a split decision. Poston v. U.S.D. No. 387, 37 Kan. App. 2d 694, 156 P.3d 685 (2007). Judge McAnany dissented, indicating the commons’ “primary function” was to serve as the students’ cafeteria and to provide access to other areas of the school. In contrast, “its recreational use is purely incidental.” 37 Kan. App. 2d at 698. Additionally, Judge McAnany would not extend the gymnasium’s status under the KTCA to the adjoining commons “simply because they are contiguous,” noting conduct in a classroom would not be immunized simply because of its proximiiy to the gymnasium. 37 Kan. App. 2d at 698.
On review, Poston urges us to adopt the dissent’s view. In arguing the district court erred in applying the recreational use exception to this case, he basically funnels his contentions into two arguments: (1) The commons was not an “integral part” of the gymnasium, and (2) recreation was not the intended use of the commons and any recreational use of the commons has been merely incidental. Poston asserts that, by affirming the district court, the Court of Appeals expanded K.S.A. 2007 Supp. 75-6104(o) beyond the application intended by the legislature.
U.S.D. No. 387 counters by arguing that because the commons sat appurtenant to the gymnasium, provided gymnasium access, and sometimes housed recreational activities such as snack concessions and wedding receptions, immunity should also extend to cover negligent acts taking place there.
Standard of Review
The issue of whether the recreational use exception to the KTCA, K.S.A. 2007 Supp. 75-6104(o), renders U.S.D. No. 387 immune from liability involves a question of statutory interpretation subject to unlimited review. Lane v. Atchison Heritage Conf. Center, Inc., 283 Kan. 439, 443, 153 P.3d 541 (2007); Wilson, 273 Kan. at 586-87. Our standards for statutory interpretation are well established:
“ ‘The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.’ ” Wilson, 273 Kan. at 588 (quoting Robinett v. The Haskell Co., 270 Kan. 95, 100, 12 P.3d 411 [2000]).
Recreational Use Exception
Under the KTCA, unless an exception applies, a governmental entity “shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A. 2007 Supp. 75-6103(a). In order to avoid liability, the governmental entity has the burden of proving that it falls within one of the enumerated exceptions found in K.S.A. 2007 Supp. 75-6104. See Jackson v. U.S.D. 259, 268 Kan. 319, 331, 995 P.2d 844 (2000) (Jackson I); Hesse and Burger, Recreational Use Immunity: Play at Your Own Risk, 77 J.K.B.A. 28 (February 2008); Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty-Five Years, 52 Kan. L. Rev. 939 (June 2004).
Among the exceptions to liability is the so-called recreational use exception, which this court has determined is to be broadly applied to accomplish the legislative purpose of the exception. Lane, 283 Kan. at 444; Wilson, 273 Kan. at 592. The policy underlying the exception and its purpose was explained in Jackson I:
“The purpose of K.S.A. 75-6104(o) is to provide immunity to a governmental entity when it might normally be liable for damages which are tire result of ordinary negligence. This encourages governmental entities to build recreational facilities for the benefit of the public without fear that they will be unable to fund them because of the high cost of litigation. The benefit to the public is enormous. The public benefits from having facilities in which to play such recreational activities as basketball, softball, or football, often at a minimal cost and sometimes at no cost. The public benefits from having a place to meet with others in its community.” 268 Kan. at 331.
This legislative purpose, to be applied broadly here, governs our application of the exception. The statute provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.” K.S.A. 2007 Supp. 75-6104.
Thus, to establish that the exception applies, U.S.D. No. 387 must establish that (1) Poston claims ordinary negligence only; (2) Poston claims the negligence was the proximate cause of the alleged injuries; and (3) Poston’s injuries resulted from the use of a qualifying property. The summary judgment motion and Poston’s response accepted that there were allegations of ordinary negligence only and that the negligence was the proximate cause of Poston’s alleged injuries. The only dispute was whether the commons was a qualifying property.
To be a qualifying property, the properly must be (a) public and (b) intended or permitted to be used as a park, playground, or open area for recreational purposes. Here, the public nature of the property is not in issue. K.S.A. 2007 Supp. 75-6104, which contains the exceptions to liability, applies to governmental entities, and the KTCA is applicable to school districts and their employees. K.S.A. 2007 Supp. 75-6102(b),(c) and (d); Jackson I, 268 Kan. at 322-23.
The dispute relates to the second requirement, which incorporates three points for analysis: The property must be (1) intended or permitted to be used (2) as a park, playground, or open area (3) for recreational use. There would be no issue regarding these requirements if the injury had occurred in the gymnasium during the basketball practice. A school gymnasium has been held to be qualified “public property” for the purposes of K.S.A. 2007 Supp. 75-6104(o), and its use for basketball practice was clearly a recreational use. See Jackson I, 268 Kan. at 323; Jackson v. U.S.D. No. 259, 29 Kan. App. 2d 826, 831, 31 P.3d 989 (2001) (Jackson II). This qualification of the gymnasium under the exception is relevant because the district court did not consider whether the commons standing alone met the criteria; rather, it considered whether the commons qualified as a necessary and integral part of the gymnasium.
Integral Part
In finding that the recreational use exception applies, the district court relied heavily on two Kansas cases, Robison v. State, 30 Kan. App. 2d 476, and Wilson v. Kansas State University, 273 Kan. 584.
In Robison, the plaintiff was injured when he slipped and fell in a wet hallway between a swimming pool and a locker room. First, the Court of Appeals panel determined that the swimming pool qualified as property covered by the recreational use exception. 30 Kan. App. 2d at 478. The panel then turned to Robison’s argument that the defendants were liable for his injury because it occurred in the hallway, rather than the swimming pool, and that the hallway was not “intended or permitted to be used for recreational purposes.” 30 Kan. App. 2d at 479. The panel rejected the argument, citing Nichols v. U.S.D. No. 400, 246 Kan. 93, 97, 785 P.2d 986 (1990).
In Nichols, as the plaintiff was leaving football practice, he was injured crossing a “grassy swale or waterway” between the football field and the locker room. Suing for damages, the plaintiff argued the coach was negligent in ordering the players to cross the area in the dark and in failing to provide proper supervision. The plaintiff argued the immunity provision did not apply when liability was premised on the coach’s actions rather than the property’s condition. This court rejected the argument by holding the KTCA recreational use exception applied when injuries resulted from the use of public property intended or permitted to be used for recreation, regardless of whether the activity was sponsored or supervised by public officials.
The issue addressed in Nichols did not focus the court’s analysis on whether immunity applied when the injury occurred between the football field and locker room rather than on the football field. Nevertheless, subsequent cases have interpreted the case to mean “[s]chool districts are not liable for injuries which are the result of ordinary negligence and which occur on or near a football playing field.” (Emphasis added.) Jackson I, 268 Kan. at 324.
This reading of Nichols was reaffirmed in the subsequent decision of Wilson v. Kansas State University, 273 Kan. at 591. In Wilson, this court determined the university was immune from tort liability arising when a patron of the football stadium was injured while using a stadium restroom. The court reasoned: “While the restrooms independently have a nonrecreational usage, they serve no purpose but for the recreational nature of the football stadium, which attracts large numbers of people.” 273 Kan. at 588.
Further, Wilson explained that “the restrooms are ‘an integral part of a football stadium’ ” because the restrooms allowed people to continue enjoying the recreational purposes provided by the football games at the stadium without leaving. 273 Kan. at 589. The court went on: “Likewise, the usefulness of the park is increased and the legislative purpose is advanced.” 273 Kan. at 589. In addition, to the extent the legislature intended to encourage the building of recreational facilities, extending immunity to cover negligent acts in restrooms is consistent with the legislative intent because “such extension further increases the incentive to build recreational facilities.” 273 Kan. at 589. Finally, the Wilson court stressed: “[T]he restrooms are not ‘incidentally’ connected to the stadium but rather necessarily connected to the stadium by plan.” 273 Kan. at 590. As a result, the restrooms were deemed to fall within the recreational use exception.
Applying Wilson to the facts of this case leads to the same conclusion. Although the commons was not used exclusively for recreational use, it was an integral part of the use of the gymnasium. Like the restrooms, the use of the commons to serve concessions allowed patrons to enjoy the recreational events conducted in the gymnasium. Additionally, ticket sales were integral to the public being invited into the gymnasium for many of the events. Moreo ver, the commons was not incidentally connected to the gymnasium but was necessarily connected by plan as a principal means for the public to gain physical access to the gym, to purchase a ticket to gain entry, and to purchase concessions for enjoyment during the event. Indeed, Poston’s use of the commons at the time of his injury resulted from a use that was consistent with the plan; he walked to and from the gymnasium during the basketball practice by using a route of access intended for public use. Also, extending immunity is consistent with the legislative intent underlying the exceptions. A school would be discouraged from opening a gymnasium for recreational use if liability attached to injuries incurred in an area that is an integral part of the gymnasium’s recreational use.
Poston attempts to distinguish Wilson by pointing out that the restrooms in that case were located inside the football stadium. Here, the commons was located outside the gymnasium, although it was located inside the school, directly adjacent to the gymnasium, and provided direct access to it. Although the factual distinction is accurate, its legal importance is undercut by language in Wilson. Rather than state a requirement that the restrooms be located within the football stadium itself in order to qualify as recreational use property, the Wilson court quoted the Jackson I court’s description of Nichols as extending immunity when injuries “occur on or near a football playing field. [Jackson I,] 268 Kan. at 324.” Wilson, 273 Kan. at 591. The Wilson court then noted: “Arguably, no recreation takes place near a football field, yet the property is collectively intended for recreational purposes.” 273 Kan. at 591. Here, the commons and gymnasium were collectively intended for and served a recreational purpose.
Incidental Recreational Use
Poston also argues that Wilson is distinguishable because the Kansas State University football stadium and its restrooms were intended solely for recreational use. In contrast, the primary purpose of the commons was for student dining and providing access to various areas of the school. Any recreational use, according to Poston, was merely incidental.
This argument was the focus of Judge McAnany s dissent, in which Barrett v. U.S.D. No. 259, 272 Kan. 250, 32 P.3d 1156 (2001), was cited for support. Barrett addressed the constitutionality of the recreational use exception. In doing so, the Barrett court talked about the purpose behind K.S.A. 75-6104(o) and the distinction between a gymnasium and a classroom:
“It is trae that a student in a gym is arguably similarly situated as one in a classroom. However, distinguishing between a student injured in the gym and one who is injured in the classroom is rationally related to the purpose of the statute. The school district needs little incentive to create classrooms; however, the same cannot be said of recreational facilities such as gyms and football fields. While these facilities undoubtedly enhance the educational process, they also provide value to the public as places for recreational activities. The statute encourages their development by a grant of limited governmental immunity.” 272 Kan. at 260.
Then, Barrett distinguished between an injury occurring in a recreational area versus a classroom or a parking lot:
“In a similar manner, distinguishing between a student injured by a rocket demonstration on the football field as opposed to a parking lot is rationally related to the statute in that schools on their own may develop parking lots without a statutory incentive, while they may not do so with regard to recreational facilities. The recreational facility is different from either a classroom or a parking lot in this regard, because its value to the public and to the students is different, and the potential for injury in its use, whether by student or the public and, therefore, for financially draining lawsuits, is greater. Absent a limited grant of immunity for negligence, a school district may decide not to provide recreational facilities, although it would still provide classrooms and parking lots absent such a grant.” 272 Kan. at 260-61.
Judge McAnany opined that an injury in the “school lunch room” should be treated no differently from an injury in a school classroom. 37 Kan. App. 2d at 699. The problem with this reasoning, however, is that the commons in this case was used as a multipurpose room, not simply a cafeteria, and some uses were an integral part of the recreational purpose of the gymnasium. The incentive to open to the gymnasium to the public for recreational use necessitates opening those areas integral to the gymnasium’s use; in this case that included the commons.
This necessity was recognized in this court’s recent decision in Lane, 283 Kan. 439, which focused upon an incidental use argument. There, the plaintiff was injured when he slipped and fell on ice at the loading dock of the Atchison Heritage Conference Center (AHCC). The AHCC hosted a New Years’ Eve dance, which was open to the public, and hired a musical group, led and managed by Lane, to provide the music. Lane used the dock to load band equipment into his van.
When Lane brought a negligence suit against the AHCC, the district court granted summary judgment on the basis that the AHCC was immune from liability under the recreational use exception. The Court of Appeals reversed, concluding that the exception did not apply where the facility’s recreational use was only incidental to its primary function — “to provide a source of economic development for the community of Atchison.” Lane v. Atchison Heritage Conf. Center, Inc., 35 Kan. App. 2d 838, 847, 134 P.3d 683 (2006). Because the AHCC’s “primary function” was not recreational, the Court of Appeals held that the AHCC did not meet its burden of establishing immunity from the KTCA. According to the Court of Appeals, “[t]he use of the facilities by artistic workshops, parties, or other activities reasonably classified as ‘recreational’ seems entirely a matter of happenstance.” 35 Kan. App. 2d at 847-48.
To support its reasoning, the Court of Appeals relied on language from Jackson I, where this court adopted the holding in Ozuk v. River Grove Board of Education, 281 Ill. App. 3d 239, 666 N.E.2d 687 (1996), that a recreational use must be “ ‘more than incidental’ ” in order for the exception in K.S.A. 2007 Supp. 75-6104(o) to apply. Lane, 35 Kan. App. 2d at 846 (quoting Jackson I, 268 Kan. at 330).
In Lane, on petition for review, this court disagreed with the Court of Appeals decision to give such weight to the property’s primary function, stating that the “language in Jackson I that the use must be ‘more than incidental’ does not equate with the language adopted by the Court of Appeals that the use must be the primary púrpose in maintaining a facility.” Lane, 283 Kan. at 447 (citing 35 Kan. App. 2d at 847.) Instead, by taking a “primary pur pose” approach, the Court of Appeals ignored the language of K.S.A. 2007 Supp. 75-6104(o), which provides that the recreational use exception applies when property “is intended or permitted” to be used for recreational purposes. Lane reiterated that “the correct test to be applied under this statute is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged.’ ” Lane, 283 Kan. at 447 (quoting Jackson I, 268 Kan. at 330).
Further, Lane observed that a facility must be viewed “collectively” to determine whether it is used for recreational purposes and pointed out that the restrooms in Wilson were immune from liability because they were “necessarily connected” to property that had a recreational use. 283 Kan. at 446 (citing Wilson, 273 Kan. at 590); see also Nichols, 246 Kan. at 94 (recreational use exception applied to “grassy swale or waterway” near public school’s football field). Additionally, the Lane court cited other cases applying the recreational use exception even where recreation was not the primary purpose of the facility. 283 Kan. at 448-49 (discussing Jackson I and determinations made on remand regarding the recreational uses of school gymnasium in Jackson II, 29 Kan. App. 2d at 831-32).
In this case, while the commons’ primary use may have been nonrecreational, during recreational use of the gymnasium the commons has a recreational use integrally tied to the gymnasium— to provide refreshments and tickets to the patrons at the sporting events in the gymnasium. See Jackson I, 268 Kan. at 330 (adopting a definition of recreation as a refreshment of strength after toil, diversion, or play). The use is undisputed. And, although the commons provided access to several different educational areas of the school, it provided the public with access to the gymnasium. As such, the commons was connected to the gymnasium by plan and was an integral part of the recreational use of the gymnasium and its recreational use was more than incidental. Therefore, U.S.D. No. 387 is immune from liability under the recreational use exception of K.S.A. 2007 Supp. 75-6104(o) for Poston’s injury that occurred in the middle school’s commons while recreational activities were in progress in the gymnasium.
The Court of Appeals decision affirming the district court’s grant of summary judgment in favor of U.S.D. No. 387 is affirmed. The district court is affirmed.
Nuss, J., not participating.
Leben, J., assigned.
Johnson, J., dissenting: I respectfully dissent. I acknowledge that Jackson v. U.S.D. 259, 268 Kan. 319, 995 P.2d 844 (2000) (Jackson I), established the precedent that the recreational use immunity of K.S.A. 2007 Supp. 75-6104(o) applies to an indoor gymnasium. Here, the well-written majority opinion makes a persuasive argument for applying our prior cases to extend Jackson I to include within the immunity the commons area which was designed to provide access to and support activities for the gymnasium. However, I view the holdings in Jackson I to be suspect and, although I feel constrained to follow precedent, I do not feel compelled to expand its reach.
First, I am perplexed by the declaration that we are to broadly apply the immunity provisions of K.S.A. 2007 Supp. 75-6104(o) to accomplish the legislative purpose for the exception. Even Jackson I acknowledged that our open-ended Kansas Tort Claims Act established the general rule that “governmental liability is the rule and immunity is the exception.” Jackson I, 268 Kan. at 322. Liberally construing an exception so as to diminish the efficacy of the general rule turns the statutory scheme on its head. Moreover, I am unable to divine a legislative intent to single out subsection (o) from among the two dozen exceptions listed in K.S.A. 2007 Supp. 75-6104 to be the one exception to receive special, broadly applicable treatment.
Perhaps more to the point, nothing in the legislative history of K.S.A. 2007 Supp. 75-6104(o) gives us any clue as to the intended purpose for which the exception was enacted. Curiously, Jackson I makes that point quite clearly. The opinion notes that the Kansas Tort Claims Act (KTCA) was introduced in the Senate on January 11,1979, as S.B. 76 and later replaced with a substitute bill, neither of which contained a recreational use immunity provision. 268 Kan. at 326. Continuing, the opinion describes how the substitute bill was subjected to “a significant amount of debate” in the Senate before being passed and sent to the House Judiciary Committee, where the bill was extensively debated and was amended to add a number of exceptions, albeit none of the additions was a recreational use exception. 268 Kan. at 326-27. Then, “[o]n April 2,1979, Representative Stites made a motion before the House to add the ‘recreational use’ exception now found at K.S.A. 75-6104(o). There are no committee notes discussing the ‘recreational use’ exception.” (Emphasis added.) 268 Kan. at 327. The opinion then relates that the House passed the amended substitute bill the same day, April 2, and the Senate concurred the following day.
In other words, the recreational use exception was apparently a last minute addition to the KTCA, without much, if any, discussion as to its purpose or scope. From that history, I am unable to intuit the public benefits rationale that the majority cites from Jackson I as justifying extraordinary treatment, i.e., broadly or liberally interpreting the exception to the detriment of the general rule.
On a more basic level, I take issue with Jackson I’s interpretation of the language utilized by the legislature in K.S.A. 2007 Supp. 75-6104(o). As the majority in this case correctly recites, our most fundamental, overarching rule of statutory interpretation is to give effect to the plain language of a statute, rather than to make our own determination of what we believe the law should or should not be. See Wilson v. Kansas State University, 273 Kan. 584, 588, 44 P.3d 454 (2002). In my view, the Jackson I application of the recreational use exception to an indoor gymnasium represented the court’s view of what the law should be, in contravention of the plain statutory language.
To review, K.S.A. 2007 Supp. 75-6104(o) immunizes a governmental entity from “any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes.” In Jackson I, the plaintiffs argued that the indoor gymnasium involved in that case was “not a park’ or a playground’ or an ‘open area.’ ” 268 Kan. at 323. The Jackson I court answered that argument by first describing prior recreational use immunity cases which had involved outdoor facilities, and then stating, as its complete analysis of the question:
“It defies common sense to hold that K.S.A. 75-6104(o) provides immunity from injuries which occur on a football field, a baseball field, a track and field area, and a sledding area, but not on an indoor basketball court solely because it is indoors.” 268 Kan. at 325.
To the contraiy, there are common-sense reasons why the legislature might distinguish between outdoor and indoor facilities. In my common experience, parks, playgrounds, and open areas, such as ballfields and sledding areas, are much more accessible to the public for unsupervised use than indoor facilities within a structure which can be locked or which are normally supervised while open.
More to the point, our rules of statutory construction instruct us not to eliminate ordinary words with ordinary meanings which are readily found in the statute. See State v. McElroy, 281 Kan. 256, 262, 130 P.3d 100 (2006). K.S.A. 2007 Supp. 75-6104(o) refers to public property “used as a park, playground or open area for recreational purposes.” The common meaning of “open area” would not include a facility fully enclosed inside four walls and a roof. If there is any doubt about that, one could apply the maxims noscitur a sociis (it is known from its associates) or ejusdem generis (of the same kind) to interpret open areas to be akin to or the same kind of place as a park or playground. In effect, Jackson Z’s interpretation of the exception effectively removed the words “as a park, playground or open area” from the statute, to read the immunity as applying to “public property used .... for recreational purposes.”
Interestingly, Jackson I found Illinois law to be persuasive on the question of whether the property involved was intended or permitted to be used for recreational purposes. In doing so, the opinion acknowledged that the Illinois statute establishing recreational use immunity specifically added the language, “ ‘buildings or other enclosed recreational facilities’ ” after its listing of “ parks, playgrounds, open areas.’ ” 268 Kan. at 328. Obviously, the Illinois Legislature did not consider an indoor facility to be encompassed by the previous terms, “ parks, playgrounds, open areas.’ ” Yet, Jackson I does not discuss this critical distinction in statutory language or the logical implication of our legislature having omitted “buildings or other enclosed recreational facilities” from K.S.A. 2007 Supp. 75-6104(o).
In my view, Jackson I’s summary holding that an indoor gymnasium was intended to be included under the recreational use exception of K.S.A. 2007 Supp. 75-6104(o) was not supported by any rule of statutory construction. Rather, the holding violated our clear rule precluding a court from determining what the law should be in lieu of determining what the law actually says. The legislature need not assuage our appetite for common sense, so long as it plainly and unambiguously states its intent with ordinary words employed with their ordinary meanings.
Nevertheless, I appreciate the concept of stare decisis as a stabilizing force in the law and do not propose here and now that the holding in Jackson I be overruled. However, it has been noted that “ ‘pillars of the law, like pillars in a building, must be repaired or replaced from time to time to prevent the whole structure from collapsing.’ ”Flagg v. Loy, 241 Kan. 216, 221, 734 P.2d 1183 (1987) (quoting Guffy v. Guffy, 230 Kan. 89, 105, 631 P.2d 646 [1981]) (Prager, J., dissenting); see also Hall v. Dillon Companies, Inc., 286 Kan. 777, 787-88, 189 P.3d 508 (2008), (discussing stare decisis). Given that the Jackson I “building” was supported by a pillar of sand, I would not attach another room to that building by expanding its holding to an adjacent commons area.
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The opinion of the court was delivered by
Nuss, J.:
The district court found that infant B.D.-Y. was a child in need of care (CINC) under K.S.A. 2007 Supp. 38-2202(d) without determining which of her three family caretakers caused her injuries. After the court placed limitations on their contact with B.D.-Y., the natural mother appealed. We transferred from the Court of Appeals; our jurisdiction is pursuant to K.S.A. 2007 Supp. 38-2273(a).
The ultimate issue on appeal is as follows:
1. Did sufficient evidence support the trial court’s finding that B.D.-Y. was a CINC?
Mother’s docketing statement, however, also argued an incongruity between the trial court requirement under K.S.A. 2007 Supp. 38-2250 to find a CINC by “clear and convincing evidence” and the appellate court’s purported lower standard for reviewing that particular finding’s factual support for merely substantial competent evidence. Accordingly, we ordered briefing on two additional issues:
2. Does “clear and convincing evidence” refer to a quantum of evidence representing an intermediate standard of proof, i.e., more than a preponderance of the evidence? Or does it refer simply to the quality of evidence which must be met under a preponderance of the evidence standard?
3. Is the appellate standard of review of trial court findings, made under a clear and convincing standard, simply to determine if substantial competent evidence exists to support the findings? Or is the standard whether substantial competent evidence of a clear and convincing quality exists to support the findings? Or is there an alternative standard?
We affirm the district court.
FACTS
B.D.-Y. was bom to D.D. (Mother) and R.Y. (Father) in February 2007. Mother and Father were common-law married and shared care-taking responsibilities with the child’s maternal grandmother. At birth, B.D.-Y. had problems eating and swallowing. A month later, doctors at Children’s Mercy Hospital performed surgeiy in which they inserted a feeding tube.
During a routine check-up, on April 17, 2007, B.D.-Y.’s primary care physician noticed bruising on her face, legs, and chest. As a result, 3 days later B.D.-Y. was referred to Children’s Mercy Hospital.
Dr. Martha Walsh, a pediatrician specializing in child abuse, evaluated B.D.-Y. at the hospital. The doctor noticed bruising on B.D.-Y.’s face and chest, and an abrasion on the back of her head. Although bruising on the legs had been reported, Dr. Walsh did not see any. She also noted that B.D.-Y. suffered pain when turning her head to the right. X-rays revealed that B.D.-Y. had at least 12 rib fractures.
In an interview with Megan Robertson, a hospital social worker, the parents explained that the bruising may have resulted from the “fishy-face exercises” they were told to conduct with B.D.-Y. to improve her sucking. The parents also explained that they had done some internet research and discovered that Zantac, a drug B.D.Y. was taking, made people more susceptible to bruising.
Father stated that B.D.-Y.’s head abrasion was probably caused by her sliding across the floor during tire exercises they did to help with her leg movement. He explained that her stomach bruising stemmed from an incident in which she had fallen back and he pulled her forward. The bruising was around die “Mickey button,” the place where the feeding tube was inserted.
The parents remarked that they had no idea what could have caused B.D.-Y.’s rib fractures. But while Mother was being interviewed by Beth Harris, another hospital social worker, Father interrupted to say that a friend reminded him that approximately 10 days earlier, Father had performed CPR on B.D.-Y. He said that he pressed on her back, breathed in her mouth, and did chest compressions. Father thought the rib fractures might have been caused by the chest compressions.
Father also said that while he did not call 911, he did call the nurse line. Both parents frequently called the nurse line to ask questions about B.D.-Y.
Father additionally told social workers that he had suffered from seizures since a September 11, 2004, car accident. However, no medical doctor has diagnosed him with epilepsy or any type of brain injury. He was given a prescription to reduce the number of seizures, but believes the seizures still prevent him from working. He also told tire social workers that he is often unable to remember the time frame surrounding the seizures.
A court petition alleging that B.D.-Y. was a CINC was filed on April 24, 2007. She was removed from the home and placed in foster care the next day. A trial was held the following September.
At trial, B.D.-Y.’s daily routine was outlined. Mother was employed during regular daytime hours. She would wake up every day and take care of B.D.-Y. until she went to work. Grandmother would then come over and help for a few hours. Father would wake up a little later and would then be solely responsible for B.D.Y. for die next few hours. Grandmother would return later in the afternoon to help Father, and Mother would return around 5 p.m.
Dr. Walsh testified that the bruising and the abrasion were atypical of a child B.D.-Y.’s age, as she was not at “cruising age” yet. Dr. Walsh explained that these types of injuries are usually the result of a traumatic injury. She testified that the fishy-face maneuvers do not cause bruising. Additionally, to determine if Zantac was causing the bruising, B.D.-Y.’s platelet count was measured three times while she was at the hospital. Her platelet count was always normal.
Dr. Walsh also discussed the multiple rib fractures. She first explained that they were lateral and posterior, which were not typical of CPR-caused injuries. Dr. Walsh also explained that rib fractures are rare in infants because their ribs are so pliable. She further estimated that the fractures were 10 to 14 days old. She suspected child abuse because the explanations given for all of the injuries were implausible. She could not determine who had caused the injuries, however, or whether they were intentional or accidental.
Social worker Penny Clodfelter testified about her discussion with Father regarding the CPR incident. Father told her that the nurse who answered the nurse line told him he did not need to call 911. Clodfelter questioned whether this occurred because in her experience, if a child is not breathing, the nurse would recommend getting immediate medical attention. According to Clodfelter, Father could not remember whether he had called Mother to tell her about the incident.
Psychologist Dr. Ryabik reviewed Father’s medical records and met with him several times before trial. He testified that he ob served Father having a seizure the morning of the trial. According to Dr. Ryabik, if Father continued to care for B.D.-Y., his seizures would require him to be monitored.
Dr. Young, a pathologist, testified for Father. According to Dr. Young, it is impossible to review medical records and determine whether an injury was intentionally or accidentally inflicted. He also said it is impossible to determine who caused the injuries. Dr. Young opined that all of the injuries could have been caused accidentally by Father during one of his seizures, and Father would not even remember the accident occurring.
The trial court found B.D.-Y. to be a CINC under K.S,A. 2007 Supp. 38-2202(d)(l), (d)(2), and (d)(3). It rejected as implausible Dr. Young’s suggestion that all of B.D.-Y.’s injuries resulted from one accidental event, determining that B.D.-Y. was either abused or injured in a series of accidents. It also rejected the parents’ explanations for the injuries. Finally, the court determined that even if the injuries were accidentally caused during one of Father’s seizures, B.D.-Y. was nevertheless without proper parental care and control.
ANALYSIS
Mother claims that because there was no showing that B.D.-Y.’s injuries were caused through her parents’ intent or negligence, the evidence was insufficient to support the trial court finding that B.D.-Y. was a CINC. Before considering that claim, however, we must determine the parameters of our review.
Issue 1: Clear and convincing evidence is not simply a quality of proof.
The Kansas Legislature has specified that the State must prove “by clear and convincing evidence that the child is a child in need of care.” K.S.A. 2007 Supp. 38-2250. Besides CINC cases, the clear and convincing evidence standard of proof applies to a variety of other causes of action in Kansas. See, e.g., In re Arabia, 270 Kan. 742, 19 P.3d 113 (2001) (attorney discipline); Ortega v. IBP, Inc., 255 Kan. 513, 874 P.2d 1188 (1994) (retaliation for workers compensation claim); Chandler v. Central Oil Corp., 253 Kan. 50, 853 P.2d 649 (1993) (to prove invalidity of marriage); Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 827 P.2d 24 (1992) (whether agency relationship exists); In re Kerns, 225 Kan. 746, 594 P.2d 187 (1979) (permanent deprivation of parental rights); Hoch v. Hoch, 187 Kan. 730, 359 P.2d 839 (1961) (fraud); Jackman v. Development Co., 106 Kan. 59, 187 P. 258 (1920) (action to cancel oil and gas lease).
We first examine what is meant by “clear and convincing evidence.” The parties agree that it is an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt. See Addington v. Texas, 441 U.S. 418, 423-24, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979); In re S.M.Q., 247 Kan. 231, 796 P.2d 543 (1990). We agree. Accordingly, the clear and convincing requirement is best understood in relation to these other two standards.
We have defined preponderance of the evidence as “ ‘evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.’ Black’s Law Dictionary 1182 (6th ed. 1990). In other words, a ‘preponderance of the evidence’ means that evidence which shows a fact is more probably true than not true.” Ortega, 255 Kan. at 527-28; see PIK Civ. 4th 102.10. Because this standard “results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake.’ ” Ortega, 255 Kan. at 528 (citing Grogan v. Garner, 498 U.S. 279, 286, 112 L. Ed. 2d 755, 111 S. Ct. 654 [1991]).
In criminal cases, however, a higher standard of proof is required because of the greater interests at stake. “[T]he interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment” — requiring “under the Due Process clause that the state prove the guilt of an accused beyond a reasonable doubt.” Addington, 441 U.S. at 423-24.
While we have been willing to define “preponderance of the evidence,” we have been unwilling to define “beyond a reasonable doubt.” As we said in State v. Walker, 276 Kan. 939, 955-56, 80 P.3d 1132 (2003), “ ‘ “No definition or explanation can make any clearer what is meant by the phrase ‘reasonable doubt’ than that which is imparted by the words themselves.” ’ ” (Quoting State v. Bridges, 29 Kan. 138, 141 [1883]). We have generally refrained because it “usually leads to a hopeless thicket of redundant phrases and legalese, which tends to obfuscate rather than assist the juiy.” Walker, 276 Kan. at 956.
Defining the phrase that lies between these two standards has similarly proven troublesome. As we stated in Fox v. Wilson, 211 Kan. 563, 578, 507 P.2d 252 (1973):
“The meaning of such phrases as ‘clear and convincing proof or ‘by evidence that is clear, convincing and satisfactory’ has plagued this and other courts for many years. The phrases are used largely in cases involving fraud, oral contracts with decedents, actions to reform or set aside deeds or prove lost deeds, and the Mice, where for one reason or another it is felt that a ‘mere preponderance’ of the evidence is insufficient.”
Despite the admitted difficulty of discerning the meaning of clear and convincing evidence, definitional efforts have been made in Kansas. The results, however, have been less than completely satisfying. Based upon several Kansas cases cited in the Comments, PIK Civ. 4th 102.11 presently states: “To be clear and convincing, evidence should be ‘clear’ in the sense that it is certain, plain to understand, unambiguous, and ‘convincing’ in the sense that it is so reasonable and persuasive as to cause you to believe it.” These cited cases, and especially some other decisions of this court, have not only failed to fully clarify, but have also sometimes further muddied, the phrase’s meaning.
For example, in Ortega, we acknowledged that clear and convincing evidence is an intermediate standard of proof. 255 Kan. at 528 (citing Santosky v. Kramer, 455 U.S. 745, 756-57, 71 L. Ed. 2d 599, 102 S. Ct. 1388 [1982]). But in our efforts to clarify past confusion, we held that it is measured by the quality, not quantity, of evidence presented:
“Over the years, this court has discussed clear and convincing evidence in the context of many issues and causes of action, and some confusion exists as to how a jury should be instructed. We hold that clear and convincing evidence is not a quantum of proof but, rather, a quality of proof. A party having the burden of proving a discharge from employment in retaliation for having filed a workers compensation claim must establish that claim by a preponderance of the evidence, but the evidence must be clear and convincing in nature.” (Emphasis added.) 255 Kan. at 528.
As PIK Civ. 4th 102.11 acknowledges, we then attempted to further define clear and convincing evidence: “It is clear if it is certain, unambiguous, and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it.” 255 Kan. at 528 (citing Chandler, 253 Kan. at 58).
Four years before Ortega, this court also attempted to provide a clarifying definition of clear and convincing evidence in an area closely related to CINC: parental rights’ termination. The value of the guidance in S.M.Q., 247 Kan. at 233, is questionable, however:
“Clear and convincing proof is simply a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of proof. This requirement does not call for unansioerable or conclusive evidence. The quality of proof, to be clear and convincing, is somewhere between the rule in ordinary civil cases and the requirement of criminal procedure — that is, it must be more than a mere preponderance but not beyond a reasonable doubt. Whether evidence is clear and convincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence. [Citation omitted.]” (Emphasis added.)
Earlier clarifying efforts from this court have been of similar questionable value. For example, in Newell v. Krause, 239 Kan. 550, 557, 722 P.2d 530 (1986), we held that the common definition of clear and convincing is:
“ ‘ “The witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distincdy remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts at issue.”
We have defined the related phrase, “clear and satisfactory evidence,” in equally unhelpful terms:
“ ‘To be clear and satisfactory, evidence should be “clear” in the sense that it is certain, plain to the understanding, and unambiguous, and “satisfactory” in the sense that it is so believable that people of ordinary intelligence, discretion, and caution may have confidence in it.’ ” Barbara Oil Co., 250 Kan. at 448.
None of the Kansas appellate courts’ numerous efforts to cure this “plague” of imprecision (see Fox, 211 Kan. at 578) has included references to the United States Supreme Court decision in Colorado v. New Mexico, 467 U.S. 310, 81 L. Ed. 2d 247, 104 S. Ct. 2433 (1984). There, the Court applied the clear and convincing standard to an interstate water dispute and explained:
“Last term, the Court made clear that Colorado’s proof would be judged by a clear-and-convincing-evidence standard. [Citation omitted.] In contrast to the ordinary civil case, which typically is judged by a ‘preponderance of the evidence’ standard, we thought a diversion of interstate water should be allowed only if Colorado could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are ‘highly probable.’ See C. McCormick, Law of Evidence § 320, p. 679 (1954). This would be true, of course, only if the material it offered instantly tilted the evidentiary scales in the affirmative when weighed against the evidence New Mexico offered in opposition. See generally McBaine, Burden of Proof: Degrees of Belief, 32 Calif. L. Rev. 242, 251-54 (1944).” (Emphasis added.) 467 U.S. at 316.
The law review article cited by the Court, McBaine, Burden of Proof Degrees of Belief, provides that in the cases requiring proof by clear and convincing evidence,
“the courts have decided, not unwisely, that a litigant who asserts certain facts must carry a greater burden than is required ordinarily in civil suits and lesser burden than the state must carry in a criminal prosecution. The burden then should be that the proponent of these issues must establish that the facts, which he asserts, are highly probably true . . . yet not require him to discharge the greater burden of persuading them [the jurors] that they are almost certainly true, true beyond a reasonable doubt, or are certainly true.” (Emphasis added.) 32 Calif. L. Rev. 242, 253-54 (1994).
The treatise on evidence cited by the Court currently describes equating clear and convincing with highly probable as a “persuasive suggestion.” See 2 McCormick on Evidence § 340, p. 487 (6th ed. 2006) (“It has been persuasively suggested that they [e.g, clear and convincing] could be more simply and intelligibly translated to the jury if they were instructed that they must be persuaded that the truth of the contention is ‘highly probable.’ ”).
Numerous state jurisdictions have also adopted a “highly probable” definition of clear and convincing evidence. Before Colorado v. New Mexico, the Connecticut Supreme Court in Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981), stated that “the burden of persuasion is sustained if the evidence Induces in the mind of the trier a reasonable belief that the facts are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.’ ” Afterward, see, e.g., State v. King, 158 Ariz. 419, 763 P.2d 239 (1988) (“[T]he better instruction would inform a jury that clear and convincing evidence is evidence that makes the existence of the issue propounded ‘highly probable.’ ”); State v. Kimball, 145 Idaho 542, 181 P.3d 468 (2008) (sex offender who sought to have his name removed from registry must prove it was highly probable or reasonably certain he was not at risk to reoffend); Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135 (Ind. 1988) (punitive damages; “Clear and convincing evidence may be defined as an intermediate standard of proof greater than a preponderance of the evidence and less than proof beyond a reasonable doubt and requires the existence of a fact be highly probable.”); Taylor v. Commissioner of Mental Health, 481 A.2d 139, 153-54 (Me. 1984) (petitioner required to prove eligibility for requested modified release treatment program by clear and convincing evidence; lower court must find the required factual conclusion to be “highly probable”); State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (whether evidence of a subsequent sexual act is clear and convincing; standard “met when the truth of the facts sought to be admitted is ‘highly probable’”); State ex rel. Dept. Of Human Services v. Simmons, 342 Or. 76, 149 P.3d 1124 (2006) (termination of parental rights; clear and convincing means the court must find that evidence establishing the truth of the facts asserted is highly probable); Estate of Acuff v. O’Linger, 56 S.W.3d 527, 537 (Tenn. App. 2001) (fraud; “[T]he determinative question under this standard of review is whether or not the plaintiffs have carried the burden to establish that it is ‘highly probable’ that the two deeds . . . are forgeries.”); Garrison v. CC Builders, Inc., 179 P.3d 867, 877 (Wyo. 2008) (fraud; “Evidence is clear and convine ing if it persuades the trier of fact that the truth of the contention is highly probable.”).
We agree with those courts that have essentially defined clear and convincing evidence as that which is sufficient to establish that the truth of the facts asserted is “highly probable.” We particularly agree with the analysis expressed by the Maine Supreme Court in Taylor, 481 A.2d 139, as it described why it was abandoning its earlier rationale contained in Horner v. Flynn, 334 A.2d 194 (Me. 1975). The Homer court, like this court in Ortega, had held that the clear and convincing evidence standard “does not identify a level of proof higher than proof by a preponderance, but rather denotes the better quality of evidence that is required to satisfy the preponderance standard.” (Emphasis added.) Taylor, 481 A.2d at 153.
The Taylor court began its analysis by echoing the United States Supreme Court in Addington, 441 U.S. at 423, concerning the function of a standard of proof:
“[A] standard of proof serves to allocate the risk of error [between the litigants] and to instruct the factfinder as to the degree of confidence society expects for a particular decision. To effectuate those purposes, a standard of proof should operate to set the degree to which the factfinder must be persuaded of a particular factual conclusion.” 481 A.2d at 154.
The Taylor court then generally described how the Homer approach, like Ortega’s, would not serve the function expected under the clear and convincing standard of proof:
“Under the Homer approach the factfinder need only be persuaded that the factual conclusion in dispute is more probable than not. The additional requirement in Homer that the conclusion be supported by high quality evidence cannot adequately satisfy the objectives of the ‘clear and convincing evidence’ standard. A ‘high quality evidence’ requirement does not serve to allocate the risk of error [between the litigants, as described in Addington] and serves only indirectly to instruct the factfinder of the degree of confidence expected for a certain result.” 481 A.2d at 154.
The Taylor court then specifically illustrated why the clear and convincing standard of proof could not just represent a quality of the preponderance of the evidence:
“For example, there are many instances in which the evidence on both sides might be deemed of ‘high quality.’ In such instances, Horner permits the party bearing the burden of proof to prevail despite having only a bare preponderance of the evidence. Although the introduction of high quality evidence may well be an important element in meeting the intermediate standard of proof, that alone would not suffice. The factfinder must be persuaded, on the basis of all of the evidence, that the moving party has proved his factual allegations to be true to a high probability. That degree of confidence effectuates the policy purposes for which we have, in this case and others, adopted the ‘clear and convincing evidence’ standard.” (Emphasis added.) 481 A.2d at 154.
Per direction from the United States Supreme Court, Kansas, like Maine, recognizes that the clear and convincing standard of proof should apply when “ ‘ “particularly important individual interests or rights are at stake.” ’ ” Ortega, 255 Kan. at 528; see Santosky, 455 U.S. at 756 (“This Court has mandated an intermediate standard of proof — ‘clear and convincing evidence’ — when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.’ ”). In Santosky, the individual interest at stake was termination of parental rights. In the instant case, the interest is limitation of parental rights through finding one’s child to be in need of care. The Santosky Court observed that it previously had “deemed this level of certainty [clear and convincing evidence] necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’ ” (Emphasis added.) 455 U.S. at 756. Like the Maine Supreme Court, we believe that the quantity of evidence, not just the quality of the preponderance of the evidence, best serves this function.
Adopting this definition of clear and convincing evidence — that the factfinder believes that the truth of the facts asserted is highly probable — will also begin to provide, through its simplicity, some much-needed clarity to an evidentiary area that has plagued Kansas, and other jurisdictions, for years. The new definition obviously applies to parental rights termination cases and, as here, to CINC cases, where important individual interests are at stake. Cf. Santosky, 455 U.S. at 758-59 (“natural parent’s ‘desire for and right to “the companionship, care, custody, and management of his or her children’ ” is an interest far more precious than any property right”). We see no valid reason why it should not also apply to all cases requiring the factfinder to make a determination based upon clear and convincing evidence. All contrary holdings of this court are disapproved, and the Kansas pattern jury instruction(s) on this issue will require modification.
Issue 2: When an appellate court reviews a trial court’s determination which is required to be based upon clear and convincing evidence, it considers whether a rational faclfinder could have found the determination to be highly probable.
Having clarified what is meant by clear and convincing evidence, we must now determine what criteria appellate courts should apply when reviewing a trial court’s determination under that standard of proof. Mother argues that something more than simply a review for the usual “substantial competent evidence” is required, e.g., “substantial competent evidence of a clear and convincing nature.” The State somewhat agrees: the standard is “whether competent evidence of a clear and convincing quality exists to support the [CINC] finding.”
We begin our analysis of this question with an acknowledgment of several schools of thought on the applicable appellate standard of review of an issue closely related to CINC: termination of parental rights. While the factfinder’s termination decision must be based upon a standard of proof no lower than clear and convincing evidence (see Santosky, 455 U.S. at 769), according to one commentator, appellate “[decisions range from an insistence on de novo analysis of the trial court’s ruling, through some form of heightened review, to deferential or almost non-existent review.” Paulsen, Annual Survey of Texas Law, Family Law: Parent and Child, 51 SMU L. Rev. 1087, 1124-26 (1998). According to the commentator, Kansas is in the “almost non-existent review” category, citing S.M.Q., 247 Kan. 231.
In S.M.Q., this court held that the applicable standard of review for the appellate courts in a termination of parental rights case is not whether the record contains substantial competent evidence of a clear and convincing nature. Rather, the standard is less: “whether there is substantial competent evidence in the record to support the trial court’s decision that the parent was unfit and that parental rights should be terminated.” 247 Kan. at 240.
This lower standard of review has been followed since then in parental rights termination cases, e.g., In re T. S., 276 Kan. 282, 74 P.3d 1009 (2003); In re C.B., 34 Kan. App. 2d 317, 325, 117 P.3d 888 (2005); and in analogous CINC cases, e.g., In re A.F., 38 Kan. App. 2d 773, 774, 172 P.3d 66 (2007); In re E.T., 36 Kan. App. 2d 56, 74, 137 P.3d 1035 (2006); In re J.J.G., 32 Kan. App. 2d 448, 454, 83 P.3d 1264 (2004).
Mother argues, however, that while we cited S.M.Q. in a recent CINC case, we nevertheless appeared to apply a different standard there. She notes that in In re J.D.C., 284 Kan. 155, 170-71, 159 P.3d 974 (2007), this court held:
“On appeal, we examine whether there was substantial competent evidence to support the district court’s finding [that child was a CINC], ‘Substantial evidence’ is such legal and relevant evidence as a reasonable person would accept as sufficient to support a conclusion. In re S.M.Q., 247 Kan. 231, 234, 796 P.2d 543 (1990). An appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. 247 Kan. at 234. In a CINC case, toe must, however, be able to discern that the State’s evidence was clear and convincing. K.S.A. 38-1555 (now repealed and reenacted as K.S.A. 2006 Supp. 38-2250; effective January 1, 2007). We conduct our assessment, viewing the evidence in the light most favorable to the State. [Citation omitted.]
“[W]e have no hesitation in reaching the additional conclusion that the evidence was sufficient to demonstrate J.D.C. was a child in need of care. Although it would have been helpful to have the videotape of the Safe Talk in the record on appeal, the testimony of others regarding J.D.C.’s allegations about E.D. met the clear and convincing standard.” (Emphasis added.)
We echoed this language in another CINC case, In re J.A.H., 285 Kan. 375, 172 P.3d 1 (2007). There, we quoted much of the above passage from J.D.C. and stated: “In In re J.D.C., this court held that the evidence was sufficient to demonstrate J.D.C. was a child in need of care and that the evidence met the clear and convincing standard. 284 Kan. at 170-71. We similarly conclude that the evidence in the instant case is sufficient.” (Emphasis added.) 285 Kan. at 388.
In addition to these two CINC cases, for unexplained reasons, S.M.Q.’s appellate review standard has not been scrupulously followed in other types of cases also reviewing purported clear and convincing determinations. See, e.g., In re Long, 266 Kan. 664, 668, 972 P.2d 773 (1999) (attorney discipline; “clear and convincing evidence supports the hearing panel’s findings”); York v. Intrust Bank, N.A., 265 Kan. 271, 296, 962 P.2d 405 (1998) (fraud; evidence substantial and of clear and convincing quality to support findings). Similarly, Carlson v. Burkhart, 271 Kan. 856, 27 P.3d 27 (2001), involved an inverse condemnation action where the court suggested that the landowners’ intent to dedicate property needed to be proven by clear and convincing evidence, citing Jackson v. Byrn, 216 Tenn. 537, 393 S.W.2d 137 (1965). This court upheld the district court’s findings and said: “There is substantial competent evidence of a clear and convincing nature to support the district court’s determination . . . .” 271 Kan. at 863.
We also observe that although the S.M.Q. court specifically rejected as its standard of review “whether the record contains substantial competent evidence of a clear and convincing nature,” it did not explain, or otherwise address, the apparent infirmities of prior opinions of this court which had applied that very standard in other parental rights termination cases. See, e.g., Kerns, 225 Kan. at 753-54 (district court findings and conclusions that parents be permanently deprived of their parental rights to the minor children “are supported by clear and convincing evidence”); In re Nelson, 216 Kan. 271, 277, 531 P.2d 48 (1975) (“Clear and convincing evidence supported the trial court’s findings” of unfitness as a parent.); see also In re Armentrout, 207 Kan. 366, 373, 485 P.2d 183 (1971) (clear and satisfactory evidence to support finding and judgment of trial court terminating mother’s parental rights).
In light of past uneven treatment, the time clearly is ripe to revisit the issue of the standard of our review in general, and S.M.Q.’s approach in particular. There, a majority of the Court of Appeals reversed the trial court termination of the mother’s rights to her daughter, S.M.Q. While it found some evidence to support the finding, it held that “the termination was not supported by ‘substantial evidence of a clear and convincing nature.’ ” 247 Kan. at 231. According to this court, the controlling issue on appeal was straightforward: “to discern the appropriate standard of appellate review of a trial court’s severance of parental rights.” 247 Kan. at 232. This court then held that the Court of Appeals had applied the wrong standard. As mentioned, this court concluded that instead of determining whether the record contains substantial competent evidence of a clear and convincing nature to support the trial court decision, appellate review is limited to simply determining whether there is substantial competent evidence in support.
We first observe that the S.M.Q. approach — requiring the clear and convincing evidence standard of proof at the trial level, but reviewing it as a mere preponderance standard on appeal — has long been criticized. In Beeler v. American Trust Co., 24 Cal. 2d 1, 33, 147 P.2d 583 (1944), the dissenting Justice Traynor observed:
“While it rests primarily with the trial court to determine whether the evidence is clear and convincing, . . . [i]n such cases it is the duty of the appellate court in reviewing the evidence to determine, not whether the trier of facts could reasonably conclude that it is more probable that the fact to be proved exists than it does not, as in the ordinary civil case where only a preponderance of the evidence is required, but whether the trier of facts could reasonably conclude that it is highly probable that the fact exists. When it holds that the trial court’s finding must be governed by the same test with relation to substantial evidence as ordinarily applies in other civil cases, the rule that the evidence must be clear and convincing becomes meaningless. There is a contradiction in thus destroying the vitality of the rule while affirming its soundness.” (Emphasis added.)
See, e.g., In the Matter of C.D., 614 N.E.2d 591, 598 (Ind. App. 1993) (“Just as the burden of proof below is substantially enhanced when, as here, constitutional rights and liberties are put at civil risk, the standard of review at the appellate level is correspondingly more stringent”; the review standard is “whether substantial ‘clear and convincing’ evidence was presented below which supports the trial court’s judgment.”).
We next observe that the cases relied upon by the S.M.Q. court are not supportive of its holding. The S.M.Q. court began by analogizing the termination of parental rights in an adoption proceeding to the termination of parental rights, as there, in an abuse situation. It concluded that the same standard of appellate review therefore applied to both. Unfortunately for this analogy, in such adoptions the trial court was not statutorily required to make a finding based upon clear and convincing evidence. Accordingly, this court’s reliance upon such an adoption case, In re Adoption of B.C.S., 245 Kan. 182, 186, 777 P.2d 776 (1989), where the appellate standard of review was merely for substantial competent evidence, is misplaced.
Another case relied upon by the S.M.Q. court as analogous and supporting its conclusion, In re J.G., 12 Kan. App. 2d 44, 734 P.2d 1195 (1987), is similarly inapposite. Unlike B.C.S., it was not a termination of parental rights through adoption, but rather termination of such rights because the child was in need of care. The J.G. opinion does state that the standard of review of a parental fitness determination, which must be based upon clear and convincing evidence, is strictly for substantial competent evidence. 12 Kan. App. 2d at 51. It accurately cites In re Reed, 8 Kan. App. 2d 602, 605, 663 P.2d 675 (1983), for this proposition. Reed in turn accurately cited an earlier Court of Appeals opinion for this proposition: In re Hamlett, 2 Kan. App. 2d 642, 644, 586 P.2d 277 (1978).
The problem with the analytic structure built with these cases is that its foundation, Hamlett, cites no authority for this proposition. Nor does it conduct any analysis to independently reach this conclusion. While the Hamlett court acknowledges that the burden of proving the child was dependent and neglected was by clear and convincing evidence, it simply concludes that “[o]n appellate review, however, the standard is whether the court below had substantial competent evidence upon which to base its ruling. We hold that it did, and that such finding should not be reversed on appeal.” 2 Kan. App. 2d at 644.
The Court of Appeals in S.M.Q. had relied upon the syllabus of In re A.S., 12 Kan. App. 2d 594, Syl. ¶ 5, 752 P.2d 705 (1988). The syllabus stated that upon appellate review the record must contain “ ‘substantial competent evidence of a clear and convincing nature to support a finding of parental unfitness.’ ” Upon review, this court in S.M.Q. held that the Court of Appeals had accurately quoted the A. S. syllabus, but had failed to read it “in the context of that decision.” 247 Kan. at 237. This court accurately pointed out that the body of the A. S. decision had not set forth the appellate standard of review but had merely stated that it need not be repeated. We suggested that the cases cited in the A. S. body controlled: a reference to J.G., which in turn quoted Reed, which in turn quoted Hamlett. The misplaced reliance upon these cases has been discussed above, particularly the problem with the core case: Hamlett.
Ironically, another case cited by Reed — In re Hambelton, 2 Kan. App. 2d 68, 71, 574 P.2d 982 (1978) — actually is the opposite of what the S. M. Q. court would seem to desire. Specifically, the Hambelton court acknowledged that the parent’s unfitness justifying permanent deprivation of parental rights had to be established by clear and convincing evidence. It then concluded that “[t]he record reveals clear and convincing evidence of parental unfitness on appellant’s part.” 2 Kan. App. 2d at 71, 73.
Accordingly, our independent review of these cases compels us to doubt the validity of the S.M.Q. court’s conclusion that “[tjhese cases hold that the appellate court need only find there is substantial competent evidence within the record, whereas the district court must have found evidence of a clear and convincing nature.” 247 Kan. at 238.
Upon further analysis, we also disagree with the S.M.Q. court’s conclusion that “the appellate review standard framed by the Court of Appeals [clear and convincing] does not comply with our statement in In re Nelson, 216 Kan. 271, 276, 531 P.2d 48 (1975), that ‘[i]t is not our province to usurp the court’s fact-finding function and reweigh the total evidence adduced.’ ” S.M.Q., 247 Kan. at 240. Specifically, while we agree with the statement in Nelson, we disagree that the Court of Appeals’ articulation of the appellate standard violated Nelson. Indeed, after the Nelson court made this statement, it proceeded to hold that “clear and convincing evidence supported the trial court’s findings” of parental unfitness, justifying termination of the father’s rights. 216 Kan. at 277. In short, including “clear and convincing evidence” or its equivalent as a part of the appellate standard of review does not constitute usurpation of the trial court’s factfinding function or the forbidden reweighing of evidence.
Finally, we acknowledge that the S.M.Q. court did mention several previous contrary opinions of this court involving parental rights termination. However, it did so only to demonstrate the standard of proof at the trial court, not the appellate standard of review also contained in those cases. Accordingly, as mentioned previously, the S.M.Q. court made no attempt to distinguish them or otherwise to explain the discordant appellate standards of review. See 247 Kan. at 23 (citing, inter alia, Kerns, 225 Kan. at 746; Nelson, 216 Kan. 271). Nor did the S.M.Q. court address any of the other types of cases involving clear and convincing evidence that were contrary to its holding on the standard of appellate review. See, e.g., Newell, 239 Kan. at 557 (fraud; “On review, this court considers only the evidence of the successful party to determine whether it is substantial and whether it is of clear and convincing quality.”); Fox, 211 Kan. at 579-80 (fraud; “We have no hesitancy in finding that the evidence met the clear and convincing standard.”); In re Shirk’s Estate, 194 Kan. 671, 401 P.2d 279 (1965) (oral contract; “appellate court examines the record and must be satisfied that the findings of the trial court were supported by a quantum of competent and substantial testimony of the quality required by the standard of clear, convincing or satisfactory proof’).
In addition to some inconsistency in prior decisions of this court, and the limited analysis by the S.M.Q. court, we consider the approach of a growing number of jurisdictions on this issue. They include, in one form or another, the factfinder’s standard of proof by clear and convincing evidence in their standard of appellate review. See In re Nalani C., 245 Cal. Rptr. 264, 267, 100 Cal. App. 3d 1017 (1988) (while the court applies the “substantial evidence” test, the test involves a search of the entire record to determine whether a rational trier of fact could find that termination of parental rights was supported by “clear and convincing” evidence); Blackburn v. Blackburn, 292 S.E.2d 821, 826 (Ga. 1982) (the test is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost”); Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988) (“In addressing the issue of sufficiency of evidence, we will affirm a judgment of punitive damages if, considering only the probative evidence and the reasonable inferences supporting it, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find such damages proven by clear and convincing evidence.”); Maine Eye Care Associates, P.A. v. Gorman, 942 A.2d 707, 711 (Me. 2008) (“In order to affirm a judgment when the standard of proof is by clear and convincing evidence, we must determine that the factfinder could reasonably have been persuaded that the required findings were proved to be highly probable.”); In re E.T., 184 Vt. 273, 278, 959 A.2d 544 (2008) (“whether the factfinder could reasonably have concluded that the required factual predicate was highly probable”).
In fight of these considerations, we therefore modify the standard of appellate review articulated in S.M.Q. A more appropriate standard of review for factfinder determinations required to be based upon clear and convincing evidence is one similar to that applied to sufficiency questions in criminal cases. See State v. Henderson, 284 Kan. 267, 296, 160 P.3d 776 (2007) (“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the fight most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ ”). And certainly, in both criminal and civil cases, the appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. Henderson, 284 Kan. at 297-98 (criminal); LSF Franchise REO I, LLC v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007) (civil).
In short, when an appellate court reviews a trial court’s determination that a child is in need of care, it should consider whether, after review of all the evidence, viewed in the fight most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that the child was a CINC. All contrary holdings of this court are disapproved. The primary benefit of this approach is to help resolve the incongruity created by our past approach, i.e., that while the trial court was required to make its determination by a higher standard of proof than preponderance of the evidence — clear and convincing — we nevertheless reviewed that determination by the same lower standard used for mere preponderance-based determinations.
Although this case involves a CINC determination, we see no valid reason why the appellate standard of review articulated here should not also apply to all cases requiring the factfinder to make a determination based upon clear and convincing evidence.
Issue 3: Sufficient evidence was presented to support the trial court’s determination that B.D.-Y. was a CINC.
Having clarified what is meant by clear and convincing evidence and having determined what standard appellate courts should apply when reviewing a trial court’s determination made under that measure of proof, we turn to the ultimate issue of this appeal. Mother argues that because there was no showing that B.D.-Y.’s injuries were caused through her parents’ intent or negligence, the evidence was insufficient to support the trial court’s finding that B.D.-Y. was a CINC.
The State responds that the trial court found the parents’ explanations for B.D.-Y.’s injuries implausible. Additionally, the court pointed out that Dr. Walsh’s testimony was uncontroverted. Finally, the State refers to the trial court’s finding that even if Dr. Young’s testimony were true, Mother and Father failed to provide appropriate care and control for B.D.-Y.
The trial court found B.D.-Y. was a CINC under K.S.A. 2007 Supp. 38-2202(d)(l), (d)(2), and (d)(3). Those provisions state:
“(d) ‘Child in need of care’ means a person less than 18 years of age who:
“(1) Is without adequate parental care, control or subsistence and the condition is not due solely to the lack of financial means of the child’s parents or other custodian;
“(2) is without the care or control necessary for the child’s physical, mental or emotional health;
“(3) has been physically, mentally or emotionally abused or neglected or sexually abused.”
K.S.A. 2007 Supp. 38-2202(x) defines “ ‘physical, mental or emotional abuse’ ” as “the infliction of physical, mental or emotional harm or the causing of a deterioration of a child and may include, but shall not be limited to, maltreatment or exploiting a child to the extent that the child’s health or emotional well-being is endangered.”
Viewing all of the evidence in the light most favorable to the State, a reasonable factfinder could have found it highly probable that B.D.-Y. was a CINC. It is undisputed that B.D.-Y. was a 2-month-old suffering multiple bruises and at least 12 rib fractures. The parents themselves acknowledge that she was left alone with Father for several hours during each day even though it was known that he suffered from seizures, would pass out, and would not remember what happened during those seizures. The trial court rejected Dr. Young’s suggestion that B.D.-Y.’s injuries resulted from a single accident due to one of Father’s seizures.
Even if the injuries were all accidentally occurring only during Father’s seizures, B.D.-Y. was still essentially left without any caretaker during those times. Moreover, again assuming that the multiple injuries were accidental, after the appearance of the injuries and pain, both parents failed to notice and take any action for 10 to 14 days. B.D.-Y.’s serious, multiple, and late-reported injuries demonstrate it was highly probable that she had been physically abused, that she was without adequate parental care or control, and that she was without the care or control necessary for her physical health. The requirements of K.S.A. 2007 Supp. 38-2202(d)(1),(2) and (3) have easily been met. Contrary to Mother’s argument, there is no accompanying requirement that a particular parent be found to have caused the injuries through intent, neglect, or otherwise.
Affirmed.
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The opinion of the court was delivered by
Beier, J.:
Defendant Shaun P. Fitzgerald challenges rejection of his motion to suppress drug evidence found in his girlfriend’s truck after a traffic stop led to his arrest for driving on a suspended license. He argues that his possession of a large amount of currency was not enough, standing alone, to supply probable cause to support a warrantless search.
Fitzgerald was pulled over while traveling by himself in his girlfriend’s truck in the late afternoon. He had run a stop sign. Officer R.A. Thatcher discovered that Fitzgerald’s driver’s license was sus pended. Fitzgerald told Thatcher that he had already called his girlfriend to come to the scene and pick up his truck, and he was completely cooperative while Thatcher placed him under arrest. Once Fitzgerald was cuffed and patted down, Thatcher found $2,673 in cash, which Thatcher described as “a mini cash register,” when going through Fitzgerald’s pockets. This discovery prompted the officer to ask Fitzgerald about his employment. Fitzgerald replied that he earned $10 an hour at a car detailing shop and that the money in his pockets was for rent and bills.
The officer then returned to the girlfriend’s truck with the intention of searching it for drug evidence. He did so and found methamphetamine, digital scales, and several small plastic bags inside.
Accounts of events diverge somewhat at that point, which is when Fitzgerald’s girlfriend arrived. According to a stipulation of the parties, she would have testified that Thatcher told her he had already found money on Fitzgerald and had already searched the truck and found drugs. He then sought her consent to search, and she asked if she could drive the truck away. The officer responded that she could not take the truck until a more thorough search had been performed. She then agreed to the search. Thatcher, on the other hand, testified that he merely sought and received the girlfriend’s consent to search after she arrived at the scene. The second search of the truck uncovered no additional evidence, but Fitzgerald made incriminating statements to a second police officer who had arrived at the scene.
The district judge rejected Fitzgerald’s motion to suppress the drug evidence and statements, ruling that two exceptions to the Fourth Amendment’s warrant requirement applied: (1) probable cause plus exigent circumstances, and (2) inevitable discovery based on the girlfriend’s later voluntary consent.
Fitzgerald was convicted of possession of methamphetamine with intent to sell and possession without a tax stamp.
Our Court of Appeals affirmed the district judge’s decision on both search warrant exceptions. State v. Fitzgerald, No. 95,812, unpublished opinion filed July 20, 2007.
The panel considered probable cause established by Fitzgerald’s peremptory call to his girlfriend, by the amount of money he was carrying and his arrangement of the bills in numerical order of denomination, and by his description of his not especially well-remunerated employment. The imminent arrival of Fitzgerald’s girlfriend to pick up the truck qualified as an exigent circumstance.
On inevitable discoveiy, the panel recited the requirements of the exception and then moved immediately to an examination of whether the girlfriend’s consent was voluntary. In the panel’s view, the girlfriend had consented to a search of the truck because she knew it had already been searched and expected no more drugs to be found. Under these circumstances, the panel said, the officer’s conduct was not coercive and thus the consent voluntary; in turn, the consent supported application of the inevitable discovery exception.
When reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district judge’s decision are supported by substantial competent evidence. The ultimate legal conclusion to be drawn from those facts raises a question of law requiring application of a de novo standard. When, as is at least partially true here, the facts material to the district court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Anderson, 281 Kan. 896, 900-01, 136 P.3d 406 (2006); State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). The State bears the burden of proof when there is a motion to suppress; it must show the lawfulness of the challenged search. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).
The Fourth Amendment to the United States Constitution guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. State v. Schoonover, 281 Kan. 453, 493, 133 P.3d 48 (2006); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993).
A warrantless search is per se unreasonable if it does not fall within a recognized exception to the search warrant requirement. State v. Ibarra, 282 Kan. 530, 536, 147 P.3d 842 (2006); State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003). The recognized exceptions to the warrant requirement for searches and seizures include consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses. State v. Rupnick, 280 Kan. 720, 727, 125 P.3d 541 (2005).
A traffic stop is a seizure within the meaning of the Fourth Amendment, but Fitzgerald’s Fourth Amendment argument does not focus on the legality of the stop. See Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). He also does not challenge the validity of his arrest for driving on a suspended license in violation of K.S.A. 8-262(a)(l) or the propriety of Thatcher’s search of his person incident to that arrest. Rather, Fitzgerald asserts that Thatcher’s initial search of the truck did not fall within any of the warrant exceptions; specifically, it was not supported by probable cause. Further, he argues, his girlfriend’s later consent to the second search did not cure the illegality of the first search, because her consent was not voluntarily given.
Initial Search
As to Thatcher’s initial search of the truck, no facts are in dispute; and both parties acknowledge that the only potentially applicable warrant exception is probable cause plus exigent circumstances. As long as probable cause exists, automobiles and other vehicles may be searched without warrants where it is not practicable to secure a warrant; their mobility fulfills the additional requirement of the existence of exigent circumstances. See, e.g., State v. Garcia & Bell, 210 Kan. 806, 810, 504 P.2d 172 (1972) (citing Carroll v. United States, 267 U.S. 132, 153, 69 L. Ed. 543, 45 S. Ct. 280 [1925]). If probable cause is absent, the existence of exigent circumstances is irrelevant. Ibarra, 282 Kan. at 544.
Probable cause is the reasonable belief that a specific crime has been committed and that a specific person committed it. Probable cause exists when the facts and circumstances within a law enforcement officer s knowledge and about which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer’s possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt. State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2, 3, 83 P.3d 794 (2004). Evidence of probable cause need not reach the level necessary to prove guilt beyond a reasonable doubt, but it must constitute more than mere suspicion. State v. Mayberry, 248 Kan. 369, 376, 807 P.2d 86 (1991).
With regard to the support for probable cause contributed by the cash found in Fitzgerald’s pockets, the State relies on a Court of Appeals civil forfeiture action. It asserts that “thick rolls of organized cash are usually in close proximity to drugs.” See State v. 1978 Chevrolet Automobile, 17 Kan. App. 2d 144, 835 P.2d 1376 (1992). In 1978 Chevrolet, claimants had been stopped for speeding and were “extremely nervous.” 17 Kan. App. 2d at 145. One claimant admitted to concealing money under his coat, and he turned over $30,900, sealed in nine separate envelopes. Claimants consented to a search of their car, in which officers discovered marijuana. After the State sought forfeiture of the car and cash, the Court of Appeals held that claimants failed to rebut a statutoiy presumption that money found in close proximity to controlled substances is subject to forfeiture. See K.S.A. 1991 Supp. 65-4135(a)(6); 17 Kan. App. 2d at 147-50.
Fitzgerald distinguishes 1978 Chevrolet and other cases cited by the State, either because they were civil forfeiture cases, or because cash was a product of rather than a reason for a warrantless search. See State v. Romo-Uriarie, 33 Kan. App. 2d 22, 97 P.3d 1051, rev. denied 278 Kan. 851 (2004) (evidence sufficient to support prob able cause to bind over defendant when, after traffic stop, defendant’s statements to police about destination, relationship to codefendants wholly inconsistent with codefendants’ statements; drug dog alerted twice to trunk of car; police officers found more than $85,000 for which explanations not credible; defendant had drug charges pending in another county; codefendant had subscription card for magazine featuring marijuana-growing paraphernalia); City of Hoisington v. $2,044 in U.S. Currency, 27 Kan. App. 2d 825, 8 P.3d 58 (2000) (defendant arrested for possession after consent to search purse revealed methamphetamine, paraphernalia; cash discovered when she removed it from pocket to post bail subject to forfeiture).
We agree with Fitzgerald that the cases cited by the State provide little if any support for the idea that Thatcher’s discovery of $2,673 in Fitzgerald’s pockets, by itself, would have been adequate to support probable cause. A large amount of currency, standing alone, is not necessarily an indication of criminal activity. See State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996); United States v. $83,900.00 in U.S. Currency, 774 F. Supp. 1305, 1317 (D. Kan. 1991).
However, the State is correct that we must look at the totality of circumstances, rather than one circumstance, to determine whether probable cause existed to support the initial search in this case. It argues that six circumstances contributed to probable cause in this case: Thatcher’s training and experience, Fitzgerald’s running of a stop sign, his driving without a license, his telephone call to his girlfriend to pick up her truck, the amount and arrangement of the cash in his pockets, and his explanation of the source of the cash.
We have not previously recognized an officer’s training and experience as a legitimate factor to consider in a court’s analysis of probable cause supporting a warrantless search. We have taken such training and experience into account when evaluating whether reasonable suspicion was present. See State v. Moore, 283 Kan. 344, 359-60, 154 P.3d 1 (2007) (experience, training of troopers among many factors determining existence of reasonable suspicion sufficient to detain); see also State v. Cook, 38 Kan. App. 2d 20, 24, 161 P.3d 779 (2007) (deference due trained officer’s ability to recognize suspicious behavior supporting stop). We also have recognized a role for an officer’s training and experience when evaluating the existence of probable cause in other situations. See State v. Wonders, 263 Kan. 582, 596, 952 P.2d 1351 (1998) (citing Texas v. Brown, 460 U.S. 730, 742-43, 75 L. Ed. 2d 502,103 S. Ct. 1535 [1983]) (officer’s experience considered when evaluating testimony that bulge in clothing “immediately apparent” as marijuana); State v. Riley, unpublished Court of Appeals opinion, No. 93,127, filed January 13, 2006 (officers’ training, experience considered to determine whether their detection of drug odor described in affidavit supported probable cause). Although this type of recognition is not without its critics, see Cook, 38 Kan. App. 2d at 25 (Greene, J., dissenting) (reliance on officer’s training and experience to support existence of reasonable suspicion adds subjective element to test, moves it too close to constitutionally insufficient hunch), we are comfortable that using an officer’s training and experience merely as one factor in a totality of the circumstances analysis of reasonable suspicion or probable cause does not infringe on the constitutional rights of a criminal defendant. We therefore consider Thatcher’s training and experience in this case, and, in theory, that factor weighs in favor of the existence of probable cause to conduct the initial search of the truck. In actuality, Thatcher’s training and experience were invoked only as to the import of the cash in Fitzgerald’s pockets. We discuss the influence of the amount and arrangement of the cash again below.
The second and third factors cited by the State — Fitzgerald’s running of a stop sign and his driving without a license — do not favor the State. The running of the stop sign is neutral on the question of whether probable cause to search the truck for drug evidence existed. Although some traffic infractions may lead to a reasonable inference that the stopped vehicle contains drug evidence, running a stop sign in the middle of the afternoon is not one of them.
The absence of a driver’s license, if anything, is helpful to Fitzgerald. It tends to explain why he would be so eager to call his girlfriend to pick up her truck. A driver in his position, knowing that his or her suspended license is bound to be detected, might want to prepare for an anticipated arrest by notifying a substitute driver that his or her services will be needed behind the wheel.
We also view the fourth factor cited by the State — the telephone call itself — as neutral or helpful to Fitzgerald. Again, because a driver in his position could foresee arrest for driving while his license was suspended when he or she has been stopped for a traffic infraction, the peremptory call to the girlfriend to pick up the truck does not have the same probable cause impact it might in another situation.
The fifth factor — the amount and arrangement of the cash in Fitzgerald’s pockets — tends to demonstrate probable cause rather than dispel it. It is reasonable for a police officer in Thatcher’s position to become suspicious of drug dealing when he discovers that someone has a large amount of cash on his or her person. It is also reasonable for an officer to suspect that a drug dealer may transport his product in the truck he is driving. We do note, however, that the amount found on Fitzgerald was far smaller than amounts that have been at issue in other cases. See, e.g., Romo-Uriarie, 33 Kan. App. 2d at 25 (more than $85,000). Also, the arrangement of bills here strikes us as fairly unremarkable. Apparently there was no special packaging, not even paper-clipped sections. Common human experience tells us that many people with no involvement in drug dealing prefer to carry any cash on their person in numerical order of denomination. This organization facilitates use of the cash in transactions and assists with mental calculation of the amount that remains available for expenditures.
We read the final factor — Fitzgerald’s modest income — as neutral or helpful to Fitzgerald on the probable cause question. Certainly, it would be difficult for a person earning approximately $20,000 a year to collect and carry more than $2,600 at any one time. But a modest living is not unemployment. And Thatcher had no additional information about Fitzgerald’s family or living circumstances, including how many persons Fitzgerald’s income was expected to house, feed, and clothe. Without such additional information, we do not think the income information shared by Fitz gerald should have added to the quantum of reasonable suspicion or probable cause. If anything, it tended to reduce it.
When the totality of all of these circumstances is considered, as it must be, we conclude that the State did not carry its burden of demonstrating the existence of probable cause to support Thatcher s initial search of the truck. Of the factors it cites, most are neutral or helpful to the defense, tending to diffuse suspicion rather than enhance it. Those factors that do contribute to probable cause are weak. The district court should not have relied on the probable cause plus exigent circumstances exception to the warrant requirement to admit the evidence derived from the initial search of the truck. See Quinn v. State, 268 Ga. 70, 71, 485 S.E.2d 483 (1997) (discovery of a large, unexplained sum of money, standing alone, does not constitute articulable suspicion of criminal activity justifying seizure of individual); Polke v. State, 203 Ga. App. 306, 308, 417 S.E.2d 22 (1992) (possession of large sums of money may be suspicious but not itself criminal, does not provide probable cause for immediate warrantless arrest); Gebremedhin v. State, 202 Ga. App. 811, 415 S.E.2d 529 (1992) (large sum contributing factor to establish probable cause for a drug arrest); Brown v. State, 191 Ga. App. 779, 780, 383 S.E.2d 170 (1989) (large sum discovered after consensual search; no other articulable reasons for suspicion; no probable cause for seizure of property); but see Moore, 283 Kan. at 358 (smell of dryer sheets, alone, does not provide probable cause to search); Ibarra, 282 at 552-53 (smell of ether, not an illegal substance, cannot alone establish probable cause for search).
Inevitable Discovery
We turn next to the State’s alternative argument — that the girlfriend’s later voluntary consent made the discovery of the drug evidence in the truck inevitable and thus excused the absence of a warrant.
Ordinarily, there is no need, from an analytical perspective, to stack the consent exception and the inevitable discovery exception to justify a warrantless search. Either is sufficient in itself. Here, however, the State has no choice. The warrantless search that bore usable fruit had already been conducted when Fitzgerald’s girl friend’s consent was sought; it was simply too late for the consent alone to absolve Thatcher of his responsibility to comply with the Fourth Amendment. On the other hand, if the consent could be characterized as not only voluntary but inevitable independent of the Constitutional violation, the State can segue from the consent exception to the inevitable discovery exception. See State v. Huff, 278 Kan. 214, 221, 92 P.3d 604 (2004) (warrant not required if evidence uncovered by search would inevitably have been discovered by law enforcement).
This clever two-step is not possible here. Even if we assume the accuracy of Thatcher’s version of events and further assume on the disputed evidence the voluntariness of his girlfriend’s after-the-fact consent, we cannot say on this record that her consent also was inevitable. Although voluntariness was contested and tried, inevitability was not. The State put on no evidence to meet its burden of proving it. Thus it cannot shelter the products of the search under the umbrella of inevitable discovery.
Judgment of the Court of Appeals, affirming the district court, is reversed. Judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Davis, J.:
This is a personal injury action arising from a collision at a controlled intersection. Trial evidence indicated that the defendant stopped at the stop sign and looked both directions before entering the intersection but nevertheless collided with the plaintiffs car, which he did not see due to glare from the sun. In the district court, the jury found no fault/negligence by either party for the accident. The Court of Appeals reversed, concluding that defendant was negligent as a matter of law. Deal v. Bowman, No. 96,868, unpublished opinion filed September 21,2007. We granted the defendant’s petition for review, reverse the Court of Appeals, and affirm the district court.
Underlying Facts and Jury Trial
On September 17, 2002, Bradley Deal was traveling eastbound on Main Street in Council Grove at approximately 5:50 p.m. Alan Bowman, who was traveling south on Adams Street, approached the intersection of Main and Adams. The traffic traveling on Main Street was not required to stop at this intersection, but vehicles on Adams Street had stop signs. After stopping and looking both directions, Bowman pulled into the intersection, where he collided with Deal’s vehicle, injuring Deal.
Deal filed a negligence action against Bowman. Both parties agreed that Deal bore no fault for the accident. The questions to be determined at trial were whether Bowman was at fault and, if so, what damages should be awarded.
Because Deal had no recollection of the accident due to his injuries, Bowman provided the only testimony as to how the accident happened. Bowman testified that he came to a complete stop at the stop sign and looked both directions. He then pulled into the intersection and collided with Deal’s vehicle, injuring Deal. Bowman testified that he did not see Deal’s car because the sun hindered his vision when he looked west. On direct examination, the following exchange took place between Bowman and his attorney:
“Q. And what — tell the jury what happened when you looked to the west?
“A. When I looked to the west, I did not see any vehicles at all. There was a pretty good glare from the sun that day, but I did not see any vehicles.
“Q. Officer Furman wrote that vehicle two, which was you, stopped at the stop sign and looked to the west, and he did not see vehicle one, the plaintiff, due to the sun blinding him, so he pulled out. Is that what you told the officer? “A. Yes.
“Q. Is that what you’re telling us today?
“A. Yes.
“Q. When you pulled out, you were aware that it was your obligation to look, to be careful?
“A. Yes.
“Q. And were you trying to do that?
“A. Yes.”
Deal’s counsel conducted the following discussion with Bowman during cross-examination:
“Q. Well, you said that your vision was blocked to the west. At what point in time was it blocked to the west?
“A. I wouldn’t necessarily say it was blocked, but I would say it was hindered by the sun.
“Q. Okay. And you knew it was hindered?
“A. Yes.
“Q. And you puEed out anyway?
“A. I very cautiously looked, then puEed out.”
Police Officer Tom Furman, who arrived at the scene of the accident shortly after it occurred and filed the police report on the incident, also testified. According to Furman, Bowman told the officer immediately after the accident occurred that “he stopped at the stop sign and he looked, and due to the sun blinding him . . . he did not see the vehicle coming.” Furman also testified that when he looked “to the west” after Bowman had provided his explanation, the officer noticed that “the sun was very blinding that day.”
At the close of evidence, Deal moved for a directed verdict— i.e., for judgment as a matter of law, on the issue of Bowman’s negligence/liability. The district court denied his motion, concluding that there was evidence that Bowman had stopped and had carefully looked both directions and that the only reason he did not see Deal was due to the sun. The case was given to the jury, which found that neither party was at fault for the accident.
Deal moved for a new trial on the issue of negligence/liability, arguing that the evidence conclusively indicated that Bowman had been negligent. The court denied the motion, relying primarily on Diaz v. Duke, 206 Kan. 650, 652, 482 P.2d 48 (1971), where this court reversed a directed verdict on the issue of liability in a negligence action when “it could have found that on account of being suddenly blinded by the sun, [the driver] did not negligently operate his automobile.”
Court of Appeals Decision
Deal appealed the district court’s denial of both his motions. A divided panel of the Court of Appeals reversed in an unpublished opinion. Deal, slip op. at 11. Although the majority recognized that determinations of negligence are normally left to the trier of fact, the court held that Bowman’s actions in this case constituted negligence as a matter of law. Slip op. at 10-11. The court therefore held that the district court erred when it denied Deal’s motion for judgment as a matter of law, reversed the district court, and remanded the case for a determination of Deal’s damages. Slip op. at 11.
The majority reasoned that “Kansas courts have long recognized the general rule that a motorist must correlate his ability to stop his vehicle within the distance objects can be seen ahead.” Slip op. at 6. Recognizing the “blinding light rule” in Diaz, the majority explained that there is a distinction in Kansas case law between facts that involve a “sudden, unexpected, or surprising” change in conditions and situations as in the present case that involve “a constant condition which diminishes a motorist’s ability to see.” Slip op. at 7, 10. The majority found that otherwise-negligent acts are not excused where conditions are constant. Slip op. at 10.
Because “reasonable minds could not differ as to the conclusion that the sunlight which impaired Bowman’s vision was not a sud den, unexpected, or surprising condition . . . [or] that Bowman drove into the intersection knowing . . . that his vision was impaired by the sun,” the majority held that Bowman was negligent as a matter of law. Slip op. at 10-11.
Judge Elliott dissented, stating he could not “join the majority without substituting [his] judgment for that of the trial judge.” Slip op. at 12 (Elliott, J., dissenting). Judge Elliott noted that the district court determined that Bowman s testimony that the blinding sunlight prevented him from seeing Deal’s vehicle was sufficient to create a question of fact for the jury. Because Judge Elliott could not “fault” the district court’s ruling, he explained that he would affirm the judgment in favor of Bowman. Slip op. at 12 (Elliott, J., dissenting).
Bowman filed a petition for review, claiming that the Court of Appeals opinion applied the incorrect legal standard, as the law requires drivers to exercise ordinary care, not to be “perfect.” Bowman argued that the Court of Appeals majority substituted its opinion for that of the trial court and jury, both of which found that there was evidence in the record demonstrating that Bowman acted reasonably under the circumstances. Deal filed a response, claiming that the Court of Appeals majority correctly found that the blinding light rule “was never intended to provide the basis for a motorist to use the sun as a legal excuse to blindly continue driving or to enter into an intersection, road, or highway without knowing what was in his path.”
Discussion
The question before us is whether Bowman’s action of pulling into the intersection, after stopping, while aware that his vision was hindered by the glare from the western sun constitutes negligence as a matter of law. This question is resolved by considering whether there were facts in the record from which a jury could determine that Bowman exercised ordinary care when entering the intersection. For reasons set forth in this opinion, this court, like the district court, concludes that Bowman’s testimony raised a factual question concerning the reasonableness of his actions and thus agrees with the decision to submit the question of negligence/liability to the jury.
Standard of Review
When considering a motion for a directed verdict, now a motion for judgment as a matter of law under K.S.A. 60-250, the district court must “ ‘resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied.’ ” Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000) (quoting Calver v. Hinson, 267 Kan. 369, Syl. ¶ 1, 982 P.2d 970 [1999]). Where no evidence is presented on a particular issue or the evidence presented is undisputed and is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions, the matter becomes a question of law for the court’s determination. See K.S.A. 60-250; Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983). Appellate courts apply a similar analysis when reviewing the grant or denial of such a motion. See Wilkinson, 269 Kan. at 202.
Analysis
In a personal injuiy action based upon negligence, the plaintiff must prove “the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered.” Nero v. Kansas State University, 253 Kan. 567, Syl. ¶ 1, 861 P.2d 768 (1993). The general rule is that “[w]hether a duty exists is a question of law,” while the question as to “[w]hether the duty has been breached is a question of fact.” 253 Kan. 567, Syl. ¶1-
Negligence is defined as “the lack of ordinary care” or, more specifically, “the failure of a person to do something that a reasonably careful person would do, or the act of a person in doing something that a reasonably careful person would not do, measured by all the circumstances then existing [citation omitted].” Johnston, Administratrix v. Ecord, 196 Kan. 521, 528, 412 P.2d 990 (1966). To prevail, a plaintiff must demonstrate that the defendant’s lack of ordinary care caused the plaintiff s injuries:
“The right of an injured party to recover does not turn alone upon the fact that he has been injured; but such injury must have been the direct and proximate result of some act or acts of negligence on the part of the one from whom recovery is sought. In other words, the negligent act or acts of the party against whom recovery is sought must have been the proximate cause of the injury and damage.” (Emphasis added.) Hickert v. Wright, 182 Kan. 100, 107-08, 319 P.2d 152 (1957).
In the vast majority of cases, the question of negligence is a factual determination for the jury, not a legal question for the court. As this court explained over 40 years ago in Johnston, 196 Kan. at 528:
“The policy of the law has relegated the determination of this [reasonably careful person standard] to the jury, to note the special circumstances of each particular case and then say whether the conduct is such as would be expected of a reasonably careful person under a similar state of affairs. Only when the facts are such that reasonable men must draw the same conclusion from them does the question of negligence become one of law for the court." (Emphasis added.)
There is no dispute that Bowman’s action of driving into the intersection proximately caused Deal’s injuries. Moreover, it is established that Deal was not at fault. The only question we must resolve is whether there was evidence in the record raising a factual question as to Bowman’s negligence — or, more specifically, whether reasonable minds could differ as to whether Bowman breached a duly of care when he pulled his vehicle into the intersection at the time of the accident.
In cases involving allegations of driver negligence, Kansas employs a “reasonably prudent driver” standard to determine whether a driver acted negligently in operating a vehicle. See Drennan v. Penn. Casualty Co., 162 Kan. 286, 288, 176 P.2d 522 (1947). Under this standard, courts have explained that it is the driver’s duty “to drive his car as a prudent driver would do.” 162 Kan. at 288. Thus, if a “vigilant driver, proceeding at a moderate rate of speed, should be reasonably sure he might safely go forward without stopping, he would not necessarily be negligent in doing so.” Anderson v. Thompson, 137 Kan. 754, 755-56, 22 P.2d 438 (1933). In such cases, the question of negligence ultimately resolves itself into one of reasonable care under all the circumstances- — a question to be resolved by the trier of fact. 137 Kan. at 756.
Bowman testified at trial that he came to a complete stop at the stop sign at the intersection of Adams and Main, looked both directions, and — perceiving that the intersection was clear — entered the intersection. Bowman explained that there was “a pretty good glare from the sun” when he looked west, but he “did not see any vehicles.” Bowman further testified that he was “aware that it was [his] obligation to look [for other vehicles in the intersection], to be careful,” and that he was “trying to do that.”
The district court held that the evidence established a question of fact as to whether Bowman acted negligently, relying primarily on this court’s decision in Diaz, 206 Kan. 650. Deal argues — and the Court of Appeals majority agreed — that it was inherently unreasonable to enter into the intersection when the sun prevented Bowman from seeing whether there were any approaching cars, so Bowman was guilty of negligence as a matter of law.
In Diaz, the plaintiff was driving west on a street in Junction City late on a summer afternoon when she came to a stop in order to turn left into a parldng lot. The defendant, who was traveling in the same direction, rear-ended Diaz’ vehicle, causing her injury. At trial, the defendant explained that “the sun suddenly flashed into his eyes, reflecting off the hood of his freshly washed and waxed automobile and blinded him so that he did not see the plaintiff s car.” 206 Kan. at 651.
The district court granted the plaintiffs motion for a directed verdict on the issue of the defendant’s negligence/Iiability, finding that the defendant was negligent as a matter of law. This court reversed, finding that “if the jury believed the defendant’s testimony, it could have found that on account of being suddenly blinded by the sun, he did not negligently operate his automobile.” 206 Kan. at 652.
In its explanation, the court explained that its conclusion was consistent with the “ ‘blinding light’ rule,” which states that
“ordinarily a motorist must correlate his ability to stop his vehicle within the distance objects can be seen ahead; but the rule is subject to qualification and exception where there is a sudden change in the motorist’s situation not caused by his own failure or neglect, and that where he is suddenly blinded so that he has no opportunity to stop his vehicle or slacken his speed, he would not be guilty of negligence as a matter of law if he collides with something on the highway. [Citations omitted.]” 206 Kan. at 652.
Turning to the facts of the case before it, the Diaz court held that the case should be remanded for a new trial, explaining:
“Had the question of the defendant’s negligence been presented to the jury, it may or may not have accepted his testimony as to the blinding effect of the sun’s reflection. Be that as it may, we are of the opinion the evidence presented a situation where reasonable minds might reach different conclusions as to whether the defendant was negligent, and if so, whether his negligence was the proximate cause of the injuries complained of. The question was clearly one to be presented to a jury, and not determined by the court as a matter of law.” 206 Kan. at 653.
In this case, the district court relied on Diaz not for its blinding light rule but rather for its holding that where a factual question exists as to whether a party acts negligently, then the case should be submitted to the jury. The district court did state there was testimony that would allow a jury to conclude that “the blinding light in his eyes negated his fault” but recognized there were factual differences that distinguished Diaz’ blinding light rule from the instant case.
The Court of Appeals majority disagreed that there was a factual question as to neghgence/liability and discussed at length why the blinding light rule in Diaz should not apply to the present facts. Deal, slip op. at 6-10. The majority found that the holding in Diaz was premised on the fact that the “blinding light” was a sudden occurrence of which the defendant had no prior knowledge. See Deal, slip op. at 6-7. The Court of Appeals distinguished the situation in Diaz from cases where a person continues to drive in constant conditions that knowingly block or impair the driver s vision. In cases involving the latter situation, the driver is hable for negligence as a matter of law. Deal, slip op. at 7-9; see Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P.2d 508 (1947); Goodman v. Wisby, 152 Kan. 341, 103 P.2d 804 (1940); Mowrer v. Osage Township, 135 Kan. 278, 10 P.2d 906 (1932). We briefly examine these decisions.
Henderson was a wrongful death action brought by parents when their son was killed when the automobile he was a passenger in collided with a trailer left parked on the highway at night. This court summarized its rule requiring the exercise of prudence when driving in known and constant conditions, stating:
“The court has on numerous occasions carefuEy distinguished between deliberate and voluntary driving in rain, mist, fog, dust, smoke or into blinding Eghts, after the driver knew he could not see, and those situations where the driver’s vision was suddenly impaired or destroyed or where he was suddenly confronted with an object which, in the exercise of reasonable diligence, could not reasonably have been anticipated. [Citations omitted.]” (Emphasis added.) 164 Kan. at 116.
The court in Henderson ultimately found that the question as to whether the plaintiff passenger was contributorily negligent by riding in a vehicle being driven at night at a reckless speed was a question of fact for the jury to decide and thus rejected the defendants’ contention that the plaintiff was negligent as a matter of law. 164 Kan. at 115-17.
Although this court in Henderson did not find the plaintiff liable for contributory negligence, it reached a different conclusion in Mowrer and Goodman. In Mowrer, the driver of a vehicle sued the township for personal injuries from an accident that was allegedly caused by a highway defect. The district court granted the township’s demurrer, finding that the plaintiff driver had failed to state an action for defective maintenance and that the plaintiff had been contributorily negligent. On appeal, this court affirmed, holding that although the driver had successfully stated a defective highway case against the township, he was barred from recovering damages because his actions were negligent as a matter of law. 135 Kan. at 280-83. The court found that the “plaintiff s admissions and evidence show contributory negligence clearly and beyond question,” making the issue “a question of law for the court” to determine. 135 Kan. at 282-83.
To arrive at this conclusion, the court noted that when the driver’s headlights “did not penetrate the fog or enable him to see the junction of the two highways” in front of him, it was the driver’s obligation “to take precautions for his own safety.” (Emphasis added.) 135 Kan. at 282. Likewise, when he could not see the road in front of him, “ordinary prudence required him to use other available means to discover the intersection and the safe part of the highway. [Citations omitted.]” 135 Kan. at 282. The reviewing court likened the driver’s actions to a scenario where a driver “had undertaken to make the turn in broad daylight with his eyes closed, on a wager that he could make it safely without exercising his sense of sight.” 135 Kan. at 282.
This court came to a similar conclusion in Goodman, where the defendant’s vehicle was engulfed in gravel dust when passed by another vehicle. The defendant driver admitted being unable to see in front of him but continued down the highway and collided with the plaintiff. Considering the plaintiff s appeal, this court held that the defendant was liable for negligence as a matter of law. The court explained that it is generally “negligence as a matter of law for a motorist to operate his automobile on a highway at such speed that it cannot be stopped within the distance objects can be seen ahead of it. [Citations omitted.]” 152 Kan. at 344. This court rejected the defendant’s attempts to draw an analogy to the blinding light cases, explaining:
“The difficulty with defendant’s contention is that his vision was not suddenly obscured by anything. . . . Notwithstanding the fact defendant could not see what was ahead of him, he continued 322 feet further and at a speed of between thirty and forty miles per hour. At that speed he was proceeding blindly. His vision was not suddenly obscured. He knowingly drove blindly at that speed and knowingly exposed himself to the dangers which might lie before him.” (Emphasis added.) 152 Kan. at 345.
Examining the evidence, the court held that because the defendant “knowingly had been traveling in a cloud of dust which ... so completely obscured his vision that, in view of the speed of his car, he was unable to stop within the range of his vision,” he was “guilty of contributory negligence as a matter of law.” 152 Kan. at 344-45.
After examining these cases, the Court of Appeals majority correctly determined that, under Kansas law, when a constant condition exists that knowingly blocks or impairs a driver’s vision, the decision to continue driving without exercising reasonable diligence is negligence as a matter of law. See Deal, slip op. at 7-9. The so-called blinding light rule from Diaz, however, provides an exception in cases where a driver s vision is suddenly blocked by some action beyond his or her control. Under such circumstances, the driver is not necessarily negligent for something that occurs while the driver is temporarily blinded. In other words, a sudden occurrence may create a factual question regarding the reasonableness of the driver’s behavior in reacting to the temporaiy condition.
The Court of Appeals’ conclusion that Bowman’s actions constituted negligence as a matter of law in this case, however, is not supported by the above analysis. Although Bowman did testily on direct examination that he told the police officer after the accident that his vision had been “blinded” by the sun, preventing him from seeing Deal’s vehicle, a review of the entire record reveals that this is not a case where the driver was completely blinded and nevertheless continued driving. Bowman stopped at the intersection, looked both directions, and indicated that he “did not see any vehicles at all.” It is true, as the Court of Appeals noted, that Bowman, after stopping, then proceeded into the intersection even though there was “a pretty good glare from the sun that day.” On cross-examination, however, he explained that his vision was not “necessarily . . . blocked, but ... it was hindered by the sun.” The district court concluded that this testimony was sufficient to create a question of fact to submit to the jury.
The district court in this case relied on Diaz not for its blinding light rule but for its conclusion that a factual question regarding negligence must be submitted to the jury. We must therefore consider whether the underlying facts in this case “are such that reasonable men must draw the same conclusion from them.” Johnston, 196 Kan. at 528. If reasonable minds could differ on the conclusion as to whether Bowman acted negligently by driving into the intersection, we must affirm the district court’s denial of the motion for judgment as a mater of law on the issue of negligence/ liability. See Diaz, 206 Kan. 650, Syl. ¶ 1.
The most recent case where we held a driver’s actions to be negligent as a matter of law appears to be St. Clair v. Denny, 245 Kan. 414, 781 P.2d 1043 (1989). In that case, this court affirmed a district court’s directed verdict against the defendant on the issue of liability for negligence. St Clair involved an automobile collision at an intersection where the defendant ran a stop sign and hit the plaintiff, who had the right of way. This court reasoned that “[although normally a determination of whether someone failed to keep a proper lookout would involve a question of fact to be decided by the jury, the evidence presented here is undisputed that the cause of this accident was [the defendant’s] failure to stop at the posted stop sign.” 245 Kan. at 420.
St. Clair is distinguishable from the current case in that the issue there was not whether the defendant had breached a duty of reasonable care, as the question is here, but whether the defendant’s running of the stop sign was the proximate cause of the accident. See 245 Kan. at 420. Running a stop sign clearly violates K.S.A. 8-1528(b). Although the violation of a traffic ordinance is not always an indication of negligence as a matter of law, this court has held that such a violation is almost always negligence when it is the proximate cause of an injury. See Williams v. Esaw, 214 Kan. 658, 660-61, 522 P.2d 950 (1974).
In this case, Bowman’s undisputed testimony was that he stopped at the stop sign at the intersection and carefully looked both directions. Although the western sun was causing quite a bit of glare from that direction, he perceived that the intersection was clear and began to proceed through the intersection at a speed of about 5 miles per hour. His vehicle then collided with the vehicle driven by Deal. Resolving all inferences in the light most favorable to Bowman, as this court must do in reviewing a motion for judgment as a matter of law under K.S.A. 60-250, see Wilkinson, 269 Kan. at 202, Bowman — unlike the defendant in St. Clair — did not violate a traffic law. The question was whether he behaved as a reasonably prudent driver would under similar circumstances. See Drennan, 162 Kan. at 288.
The facts in the instant case are more akin to this court’s earlier decision in Drennan. In that case, the plaintiff was driving at night when he was confronted with the high-beam headlights from an oncoming vehicle. Although the plaintiff dimmed his headlights and slowed down, he continued driving. After the car passed, the plaintiff turned on his bright headlights and saw a truck stopped in the roadway a short distance ahead. The plaintiff attempted to stop, but his vehicle collided with the truck, causing him injury. The plaintiff brought suit against the owner of the truck.
Considering these facts on an appeal from a jury award for the plaintiff, this court rejected the defendant’s argument that the district court should have ruled that the plaintiff had been contributorily negligent as a matter of law. 162 Kan. at 291. The court explained its conclusion as follows:
“Must we say as a matter of law that a reasonably prudent driver would assume, under the situation disclosed by the evidence, that the approaching lights would not be dimmed before the cars passed each other? Or that he should be required to assume that there might be a truck standing in the highway without lights and with no flares having been placed to warn approaching cars? We do not think so. We are not here saying that appellee was not guilty of contributory negligence. We are only saying that under the circumstances disclosed, it was a question for the jury to decide whether he was driving his car as an ordinarily prudent driver would do.” 162 Kan. at 288.
The Drennan court also rejected the defendant’s contention that the plaintiff was contributorily negligent as a matter of law since he continued driving when his vision was blinded by the oncoming headlights, stating:
“There is no occasion to review the many cases cited by [the defendant] in which fog, dust, smoke, snow or rain have completely obliterated all or practically all view of the highway ahead of a driver. The question must be viewed realistically. Every driver of an automobile who has done night-driving knows that he frequently meets cars which fail entirely to dim their lights [, and] many of them fail to do so until they are very close. Ordinarily the view ahead is only interrupted for a short period of time by the bright lights of the approaching cars.” 162 Kan. at 288-89.
Quoting the court’s previous decision in Anderson, the court held in Drennan that if a careful driver could be “ reasonably sure’ ” that he or she might proceed, the driver “ would not necessarily be negligent in doing so.’ ” 162 Kan. at 289 (quoting Anderson, 137 Kan. at 755). In such cases, “ ‘the question ultimately resolves itself into one of reasonable care under all the circumstances.’ ” 162 Kan. at 289 (quoting Anderson, 137 Kan. at 755); see also Towell v. Staley, 161 Kan. 127, 133-38, 166 P.2d 699 (1946) (noting that the extent that a driver’s vision is impaired and the reasona bleness of the driver s actions are questions to be resolved by the jury); Meneley v. Montgomery, 145 Kan. 109, 112-13, 64 P.2d 550 (1937) (“Whether the driver of the coupe, in this case, was able to observe the cattle truck in her lane of traffic in time to prevent the collision, with the proper exercise of care under all the circumstances, could not be answered as a matter of law, but was a proper question for the jury.”).
We have explained that “[r]ules of law relative to the driving of motor vehicles should be practical.” Towell, 161 Kan. at 133. The questions to be resolved in this case are, practically speaking, whether Bowman’s decision, after stopping, to proceed into the intersection in spite of the western sun’s glare was objectively reasonable and whether his testimony was credible. Both of these determinations should be made by the trier of fact. See Sall v. T’s, Inc., 281 Kan. 1355, Syl. ¶ ¶ 2-5, 136 P.3d 471 (2006) (question of whether a person exercises reasonable care is a question of fact); State v. Torres, 280 Kan. 309, 334, 121 P.3d 429 (2005) (credibility of evidence is a matter strictly within the province of the juiy). The jury was given the opportunity to consider these questions and found that Bowman’s conduct was not negligent.
There is a reason that this court has made the policy determination that questions of negligence must be left to the jury unless reasonable minds could not differ on the outcome. See Diaz v. Duke, 206 Kan. 650, Syl. ¶ 1, 482 P.2d 48 (1971). As we explained in Krentz v. Haney, 187 Kan. 428, 431-32, 357 P.2d 793 (1960):
“Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged had been established. Before the court should make such a holding the evidence should be so clear that reasonable minds considering it could have but one opinion; namely, that the party was negligent. [Citation omitted.]
“The law favors trial by jury and the right should be carefully guarded against infringements. It is a right cherished by all free people. A trial court, in the exercise of its prerogative in determining questions of law only in these kinds of cases, should not usurp the power and function of the jury in weighing evidence and passing upon questions of fact.”
In this case, the district court correctly determined that the issue of whether Bowman acted reasonably by proceeding into the in tersection — that is, whether he was negligent — was a question of fact to be determined by the jury in light of all of the surrounding circumstances.
Because we conclude that the district court correctly denied Deal’s motion for a judgment as a matter of law, we similarly conclude that Deal’s claims relating to the denial of his motion for a new trial — which was based on the same contention that Bowman’s conduct was negligent as a matter of law — are without merit.
We affirm the district court’s denial of Deal’s motion for a judgment as a matter of law and the subsequent judgment in favor of Bowman. The decision by the Court of Appeals reversing the district court is reversed.
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On June 8, 2007, this court suspended the respondent, James Lee Daniels, from the practice of law in Kansas for a period of 1 year. See In re Daniels, 284 Kan. 220, 159 P.3d 995 (2007). Before reinstatement, the respondent was required to pay the costs of the disciplinary action, furnish proof of compliance with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337), and complete all CLE requirements.
The Disciplinary Administrator’s office has filed a report verifying that the respondent has fully complied with the conditions imposed upon him by this court.
This court, having reviewed the files and recommendation of the office of Disciplinary Administrator, finds that the respondent, James Lee Daniels, should be reinstated to the practice of law in the state of Kansas.
It Is Therefore Ordered that the respondent be reinstated in the practice of law in the state of Kansas as of the date of this order.
It Is Further Ordered that this order of reinstatement shall be published in the official Kansas Reports.
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The opinion of the court was delivered by
JOHNSON, J.:
Jesse D. and Michelle Lee Esquivel, the parents of Jadon David Esquivel, deceased, seek review of the Court of Appeals decision affirming the district court’s granting of summary judgment in favor of Dr. Aaron T. Watters, a defendant in the parents’ civil action arising from Jadon’s death. Finding that summary judgment was inappropriate, we reverse.
FACTUAL BACKGROUND
In August 2001, Dr. Watters began prenatal treatment of Michelle at the Ark City Clinic. On November 15, 2001, Michelle used a gift certificate from the Clinic to have a gender determination sonogram performed at the South Central Kansas Regional Medical Center. The ultrasound technician observed a fetal abnormality which he believed was gastroschisis, a condition in which the bowel is situated outside the body.
Contrary to standard procedure, the technician took pictures during the sonogram. The radiologist refused to review the film because a gender determination sonogram is not a diagnostic procedure. The radiologist told the technician to contact Dr. Watters, the attending physician. The technician called Dr. Watters to advise of the observed abnormality. The call was not documented in Michelle’s medical records.
Dr. Watters told his assistant to call Michelle and advise her that he needed to see her right away. The assistant attempted to contact Michelle numerous times over the next several days, finally speaking with a man she believed was Jesse on November 26 and asking him to have Michelle call the doctor. The assistant did not disclose tire fetal abnormality.
Michelle did not appear for her scheduled appointment on November 26, and Dr. Watters did not see her until January 4, 2002. By that time, Dr. Watters had forgotten about his conversation with the ultrasound technician. Consequently, the doctor did not discuss the fetal abnormality with Michelle or take any action to medically deal with the problem. Michelle returned on February 4 for a routine visit, during which no mention was made of the gastroschisis.
On February 8, Michelle became extremely ill and went to the hospital emergency room. The following day, Jadon was delivered by emergency Caesarean section, and the gastroschisis was discovered. Dr. Watters was out-of-town at the time and did not participate in the delivery. Neither the parents nor the delivery team had any knowledge of the suspected gastroschisis.
Jadon was stabilized to the highest capability of the South Central Kansas Regional Medical Center and then was transferred to Wesley Medical Center, where he was admitted some 5 hours after delivery. Once at Wesley, Dr. Philip Knight performed surgery on Jadon and discovered that most of the baby’s bowel was dead, which rendered hopeless any chance of survival. Jadon was discharged from Wesley on February 20 and remained in hospice care at home until his death on March 3, 2002.
PROCEDURAL HISTORY
Michelle and Jesse commenced an action against Dr. Watters, the Ark City Clinic, and the South Central Kansas Regional Medical Center. Ultimately, the district court ordered summary judgment in favor of all of the defendants. Summary judgment for the Ark City Clinic, whose radiologist refused to examine the sonogram films, was not appealed.
In granting summary judgment to Dr. Watters, the district court opined that plaintiffs had failed to present expert testimony to establish that the doctor had deviated from the applicable standard of care or that the doctor’s failure to notify Michelle of the abnormal sonogram was the proximate cause of Jadon’s postnatal suffering and death. In granting South Central Kansas Regional Medical Center’s motion for summary judgment, tihe district court opined that the facility did not owe Michelle and Jesse the duty upon which they based their claims and that the claims were barred by tire release form Michelle signed prior to receiving the sonogram. The plaintiffs appealed the summary judgment orders in favor of these two defendants to the Court of Appeals.
The Court of Appeals affirmed the summary judgment for South Central Kansas Regional Medical Center on both bases utilized by the district court, i.e., an absence of duty and a waiver of liability. With respect to Dr. Watters, the Court of Appeals disagreed with the district court’s ruling that the plaintiffs’ expert had failed to present evidence that the doctor had deviated from the applicable standard of care. However, the appellate court affirmed the holding below that plaintiffs’ expert had failed to present evidence of a causal link between Dr. Watters’ breach of duty and the actual injuries and damages sustained by the plaintiffs. Esquivel v. Watters, No. 94,691, unpublished opinion filed April 6, 2007.
Michelle and Jesse did not seek review of the Court of Appeals’ affirmance of summary judgment in favor of South Central Kansas Regional Medical Center. Accordingly, we need not discuss that portion of the Court of Appeals opinion. Likewise, Dr. Watters did not cross-petition on the Court of Appeals’ holding that plaintiffs presented a prima facie case of a breach of duty, i.e., that the doctor deviated from the applicable standard of care. Thus, we will not revisit that question. The sole issue remaining for our review is whether the testimony of plaintiffs’ expert was sufficient to establish a triable question as to whether the doctor’s breach of duty caused the plaintiffs’ damages.
STANDARD OF REVIEW
Our familiar standard of review on summary judgments is often recited as follows:
“ ‘ “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” ’ Scott v. Hughes, 281 Kan. 642, 644, 132 P.3d 889 (2006).” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
When considering a summary judgment motion, both the district court and appellate court must refrain from the temptation to “pass on credibility and to balance and weigh evidence,” which are proper functions for the factfinder at trial. Mastin v. Kansas Power & Light Co., 10 Kan. App. 2d 620, 624, 706 P.2d 476 (1985). “In short, ‘[sjummaiy judgment should not be used to prevent the necessary examination of conflicting testimony and credibility in the crucible of a trial.’ Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir. 1980).” 10 Kan. App. 2d at 624. Moreover, “[sjummary judgment is seldom proper in negligence cases. [Citation omitted.]” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988).
DISCUSSION
The following elements establish a medical malpractice case: (1) The physician owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the physician breached this duty or deviated from the applicable standard of care; and (3) the patient was injured and the injury proximately resulted from the physician’s breach of the standard of care. Nold v. Binyon, 272 Kan. 87, 103, 31 P.3d 274 (2001); see Delaney v. Cade, 255 Kan. 199, 202-03, 873 P.2d 175 (1994).
“[N]egligence is never presumed, Schmidt v. HTG, Inc., 265 Kan. 372, 382, 961 P.2d 677, cert. denied 525 U.S. 964 (1998), and ‘may not be inferred merely from a lack of success or an adverse result from treatment. [Citation omitted.] The plaintiff in a medical malpractice case bears the burden of showing not only the doctor’s negbgence, but that the negbgence caused the [plaintiffs] injury.’ Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988). Expert medical testimony is ordinarily required. Delaney v. Cade, 255 Kan. 199, 211, 873 P.2d 175 (1994).” Hold, 272 Kan. at 103-04.
As noted, the sole issue before us involves the causation element, i.e., whether the Esquivels supplied sufficient evidence of causation through their expert, Dr. Harlan R. Giles, to avoid summary judgment. Dr. Giles’ expert report contains a clear opinion that Dr. Watters’ breach of duty caused the injuries to Jadon:
“In summary, it is my opinion that Dr. Watters deviated from the usual and customary standards of obstetrical practice in this case. First, he failed to malee any written notation of this most important obstetrical finding. When no telephone contact was made, a written notification by registered mail would have been the appropriate standard. Notwithstanding, even had this diagnosis been reaffirmed on January 4 or in the several visits thereafter, there was ample time to establish referral to a maternal-fetal medicine specialist and to arrange for a scheduled cesarean delivery at a tertiary center such as Wesley Medical Center.
“It is my opinion to a high degree of medical probability or certain [sic] that, had these steps been carried out, Jadon Esquivel would have survived intact. The ‘surprise’ diagnosis at delivery directly increased the probability of bowel compromise which ultimately led to his death. Although the mother did have chorioamnionitis, there is no indication that sepsis played a role in his death and cultures were in fact negative.”
Dr. Watters contends that Dr. Giles’ responses to deposition questioning, together with the deposition testimony of Dr. Knight, fatally impeached Dr. Giles’ opinion on causation. The Court of Appeals apparently agreed with that assessment of Dr. Giles’ credibility, because its opinion states as uncontroverted facts that “Jadon suffered no injury to his bowel during the caesarean procedure” and that “[Dr.] Knight determined that Jadon’s bowel had been dead for weeks prior to his birth.” Slip op. at 8. We perceive that both facts were disputed.
During Dr. Giles’ deposition, Dr. Watters’ attorney elicited that Dr. Giles believed that, even at the February 4, 2002, perinatal visit, it was not too late for Dr. Watters to make a timely referral to a perinatologist and arrange for Jadon’s delivery at a tertiary facility, such as Wesley, where the delivery team would be prepared to deal with the gastroschisis. Dr. Giles opined that the surprise diagnosis at delivery directly increased the probability of bowel compromise which ultimately led to Jadon’s death, explaining:
“A. Well, when we do a Caesarian section for gastroschisis, we first do an ultrasound to localize the rotational attitude of the fetus; is the abdomen up or down.
“In that case so that in delivering the baby and delivering the head, one can reach carefully with the gloved hand to the bowel and brace it while you’re bringing it back through the constriction of the uterine incision. This minimizes the chance of torsion, which in fact is the most common reason why bowel is dead or infarcted. If you don’t know it’s coming, you just deliver the baby in the routine fashion and let the bowels trail wherever they may be.”
Dr. Watters relies on the following exchange between his attorney and Dr. Giles to argue that it was uncontroverted that his failure to refer his patient was not the cause of the injuries:
“Q. Do you have any evidence from the medical records or the testimony that you’ve read, including that of Dr. Knight, that would suggest that anything related to the delivery itself caused or contributed to the dead bowel in this case?
“A. No, I can’t think of anything concrete.”
However, immediately following that exchange, Dr. Giles answered affirmatively to the question “is it your opinion that the delivery without the diagnosis of gastroschisis in mind caused or contributed to this child’s death.” He again explained how the bowel damage occurs during a “surprise” delivery. In other words, notwithstanding the cross-examination, Dr. Giles still held his opinion, to a reasonable degree of medical certainty, that Dr. Watters’ breach caused the injuries. The fact that Dr. Giles did not personally observe the delivery or have other “concrete” proof of what exactly happened to the bowel during delivery would go to the weight of the expert’s testimony. It would not render the expert’s testimony so incredible as to justify summary judgment.
The Court of Appeals put great stock in its conclusion that the child’s bowel had been dead for weeks prior to delivery. Apparently, the court drew the inference that any damage inflicted upon the bowel during delivery could not have been the proximate cause of death because of the prior necrosis. The court then concluded that “Knight’s expert medical opinion on the condition of Jadon’s bowel constitutes evidence that there was no causal link between Watters’ conduct and Jadon’s injuries.” Slip op. at 9. That holding is problematic on multiple levels.
First, Dr. Knight did not testify as an expert. Before Dr. Knight’s deposition commenced, his attorney announced “that Dr. Knight has indicated — and he was subpoenaed here or asked to be here strictly as a treating physician — he does not have any opinions on standard of care or causation; he’ll just tell you what he saw, [and] did with this child.” Dr. Watters’ attorney responded: “Perfectly acceptable. Perfectly acceptable.” Throughout the deposition, the various participants reiterated a number of times that Dr. Knight was a fact witness and would not testify as an expert at trial, including on the issue of causation.
Furthermore, Dr. Knight’s purported “expert medical opinion” appears to be based upon an off-hand remark, during the following exchange:
"Q. The necrosis of the bowel in this case, do you know from your observation of this patient when that process began?
“A. No.
“Q. Is there any fact that you can look to in any record that would tell you or help you to deduce when that necrosis began to occur?
“Mr. Hernandez [Dr. Knight’s attorney]: Object to the form, from the standpoint that he said the only record he has is what’s in front of him, the operative report.
"A. I could not tell at the time the baby was bom, in the newborn period, when it occurred, no. But it was not something that happened, you know, days before, it would have been weeks before.”
Pointedly, Dr. Knight’s operation report, which included a section entitled “Operative Findings,” did not mention that the child’s bowel had been dead for weeks. When Dr. Giles was confronted with Dr. Knight’s purported opinion that Jadon’s bowel had been dead for a month prior to delivery, Dr. Giles opined that “the findings [Dr. Knight] described in his operative report would not be consistent with something dead for a month.” Thus, the question of when the necrosis occurred was not an uncontroverted fact, as suggested by the Court of Appeals opinion.
Moreover, a fundamental rule of summary judgment is that the inferences which may reasonably be drawn from the evidence must be resolved in favor of the party against whom the ruling is sought. Korytkowski, 283 Kan. at 128. Dr. Knight did not testify that the predelivery necrosis of the bowel was the proximate cause of Jadon’s death. By drawing that inference from Dr. Knight’s deposition testimony as a fact witness, the Court of Appeals resolved the matter in favor of the summary judgment movant, Dr. Watters, rather than in favor of the parties against whom summary judgment was sought, the plaintiffs.
In conclusion, we hold that the plaintiffs provided expert testimony on causation and that expert opinion was not rendered incredible by the testimony of a fact witness, so that the unusual remedy of summary judgment on the fact issue of causation was erroneous.
Reversed and remanded for further proceedings.
Nuss, J., not participating.
Leben, J., assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Michael K. Sheahon, of Salina, Kansas, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the respondent alleged violation of Kansas Rule of Professional Conduct (KRPC) 8.4. The respondent did not file a written answer to the formal complaint. Respondent was contacted, acknowledged being notified of the proceeding before this court, and advised that since he had taken no exceptions with the final hearing report he did not feel he needéd to appear.
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. Although the respondent did not file a written answer to the formal complaint, he did appear in person. Upon the conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendations to this court:
“FINDINGS OF FACT
The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Michael K. Sheahon (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 11348. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Salina, Kansas. . . . The Respondent was admitted to the practice of law in the State of Kansas in September, 1982.
“2. The Respondent failed to file state and federal income tax returns for the tax years 1995,1996, 1997,1998, 1999, 2000, and 2001. Since 2002, the Respondent has filed state and federal income tax returns. Despite the fact that the Respondent filed his state and federal income tax returns for tax years 2002 through 2005, he has outstanding tax liability for those years.
“3. On December 29,2004, die Respondent was indicted in the United States District Court for the District of Kansas with four misdemeanor counts of failing to file an income tax return in violation of 26 U.S.C. § 7203.
“4. On August 16, 2005, the Respondent entered a plea of guilty to one count of failing to file an income tax return for 1998. The United States dismissed the remaining three counts.
“5. On August 17, 2005, the Respondent self-reported that he entered a plea of guilty to the misdemeanor charge.
“6. On December 12, 2005, the Court sentenced the Respondent to a term of probation for a period of three years. As part of the probation order, the Court imposed the following special condition on the Respondent:
‘The defendant shall file truthful and complete federal and state income tax returns in a timely manner, according to law, and cooperate with the Internal Revenue Service and state taxing authorities regarding any matter related to the defendant’s past or present tax liability during the term of supervision.’
“7. On March 21, 2007, Brooke M. Paulson, United States Probation Officer, filed a petition for warrant or summons for offender under supervision. In the petition, Ms. Paulson alleged that the Respondent failed to file his tax returns since 1995, that the Respondent failed to meet with an IRS agent as requested, that he failed to contact the IRS to resolve the outstanding debts, and that he failed to provide monthly income documentation to the probation department as directed. Thereafter, the Court issued a warrant for the Respondent’s arrest. Following his arrest, the Respondent served four days in jail. The Court’s release of the Respondent was conditioned on the Respondent’s compliance with the original conditions of his probation.
“[8], On July 25, 2007, a hearing was set to hear evidence regarding whether the Respondent’s probation should be revoked. On that date, the revocation proceedings against the Respondent were dismissed when evidence was produced that the Respondent was then in compliance with the conditions of his probation.
“[9], According to the Respondent, the Respondent owes more than $200,000.00 in outstanding taxes, penalties, and interest.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b) [2007 Kan. Ct. R. Annot. 559] and Kan. Sup. Ct. R. 211(b) [2007 Kan. Ct. R. Annot. 304], as detailed below.
“2. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent was convicted of fading to file an income tax return. Accordingly, the Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect di rectly on the Respondent’s fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
“3. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provide[s] the requirements:
‘The Respondent shall serve an answer upon the Disciplinaiy Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 profession to maintain his personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to the legal profession.
“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. In 2004, the Kansas Supreme Court censured the Respondent for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 8.1, Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b).
“Selfish Motive. It is selfish to fail to pay income taxes.
“A Pattern of Misconduct. From 1995 through 2001, the Respondent failed to file income tax returns and failed to pay income taxes. Accordingly, the Respondent engaged in a pattern of misconduct.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that he was required to provide a written Answer to the Formal Complaint— in the Respondent’s previous disciplinary case, the Court concluded that the Respondent violated Kan. Sup. Ct. R. 211(b) for failing to file a written Answer to the Formal Complaint. Despite having been previously found to have failed to file a written Answer to the Formal Complaint, the Respondent failed to do so a second time.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1982. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for many 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.
“Illegal Conduct. The Respondent engaged in illegal conduct by repeatedly failing to file state and federal income tax returns. As a result, the Respondent was convicted of a misdemeanor. The Respondent also failed to pay his taxes for a number of years.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. During the time the Respondent’s written Answer to the Formal Complaint was due, the Respondent’s former wife unexpectedly died. The Respondent’s misfortune may have contributed to his failure to file a written Answer to the Formal Complaint.
“Imposition of Other Penalties or Sanctions. The Respondent is currently on probation for his criminal conviction.
“Remorse. The Respondent expressed remorse at the hearing on this matter. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice. Standard 5.12.
‘Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud[,] deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.’ Standard 5.13.
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be suspended from the practice of law in the State of Kansas for a period of one year. The Respondent recommended that he [be] censured by the Kansas Supreme Court.
“In this case, the aggravating factors clearly outweigh the mitigating factors. Additionally, the Hearing Panel considered the fact that the Respondent failed to comply with his federal probation. As a result, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of one year from the practice of law in the State of Kansas.
“Following the one year suspension, the Hearing Panel further recommends that the Kansas Supreme Court not reinstate the Respondent’s license to practice law in the State of Kansas until Respondent establishes that he has complied with the following four terms: First, the Respondent shall comply with the conditions of probation in the criminal case, including payment of $1,000.00 per month to the IRS for the back taxes from the date of this report until reinstatement. Second, the Respondent shall timely file and pay his 2006 and his 2007 income taxes. Third, the Respondent shall calculate and pay quarterly income taxes from the date of this report until reinstatement. Finally, the Respondent shall obtain or maintain professional liability insurance or shall establish bona fide attempts to obtain professional liability insurance.”
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing and satisfactoiy evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304). Although our rules require respondent to be present for disciplinary hearings, respondent elected not to appear.
However, respondent filed a statement with the Clerk of the Appellate Courts stating that he does not take exception with the panel’s final hearing report set forth above. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt those findings and conclusions. With respect to the discipline to be imposed, the panel’s recommendation that the respondent be suspended from the practice of law in Kansas for a period of 1 year subject to recommended conditions is advisory only and shall not prevent the court from imposing a different discipline. Supreme Court Rule 212(f).
We have reviewed the panel’s recommendations for discipline together with the recommended conditions for respondent’s reinstatement to the practice of law in this state. A majority of this court is of the opinion that a more appropriate discipline in this case is indefinite suspension from the practice of law in Kansas. The recommended conditions by the panel are not adopted because this court is convinced that should respondent seek reinstatement, Supreme Court Rule 219 (2007 Kan. Ct. R. Annot. 350) adequately serves to protect the public. The majority opinion is further supported by respondent’s failure to appear and participate in the scheduled hearing before this court. A minority of the court would impose a lesser discipline.
It Is Therefore Ordered that respondent, Michael K. Sheahon, be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective on 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 the respondent shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337), and in the event respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2007 Kan. Ct. R. Annot. 350).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the cost herein be assessed to respondent.
Nuss, J., not participating.
Marquardt, J., assigned.
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The opinion of the court was delivered by
ROSEN, J.:
This is an action under the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-9,101 et seq., filed by the Kansas Department of Social and Rehabilitation Services (SRS) against the respondent, Timothy Bohrer. SRS seeks reimbursement of child care assistance paid by the State of Iowa to EUen Holmes, the permanent guardian of the respondent’s minor child, S.B. SRS also seeks an order of future child support and an order requiring Bohrer to provide medical coverage for S.B.
The district court ruled that Bohrer was not liable for child support because the permanent guardianship appointment effectively terminated Bohrer’s parental rights and, thus, terminated his duty to support S.B. SRS appealed. A divided panel of the Court of Appeals reversed. State v. Bohrer, No. 95,935, unpublished opinion filed August 3, 2007. We granted Bohrer’s petition for review and hold that the permanent guardianship appointment was not the equivalent of a termination of parental rights and did not relieve Bohrer of his duty to support S.B. Accordingly, we affirm the judgment of the Court of Appeals reversing the district court.
Facts
The underlying facts are not in dispute. S.B. was born to Timothy Bohrer and Tracy Saxton (formerly known as) Bohrer on February 28, 1994. They divorced 1 year later, and physical custody of S.B. alternated between them for several years. In 1999, the State of Kansas initiated a CINC proceeding concerning S.B. S.B. was initially placed into foster care, but by February 2001, S.B. was living in Iowa with her maternal great-grandmother, Ellen Holmes.
SRS filed a motion in the CINC case seeking appointment of Holmes as permanent guardian. On May 25, 2001, Bohrer and Saxton consented to Holmes’ appointment as the permanent guardian of S.B. The district court appointed Holmes as the permanent guardian. Thereafter, the court released S.B. from SRS custody and closed the CINC case.
Procedural Background
On March 23, 2005, SRS filed the present suit seeking reimbursement from Bohrer for funds expended by the State of Iowa on behalf of S.B. and an order for future child support and medical coverage. For the time period from February 2001 to November 2005, the state of Iowa provided public assistance to Holmes for the care of S.B. in excess of $10,000.
Bohrer opposed the action, arguing that the appointment of Holmes as S.B.’s permanent guardian, pursuant to K.S.A. 38-1501 et seq., effectively terminated his parental rights to S.B., including his obligation of support. SRS countered that the appointment of a permanent guardian is not the equivalent of a termination of parental rights and does not relieve a natural parent of the obligation to support his or her child. The district court agreed with Bohrer and held that the permanent guardianship terminated Bohrer’s obligation to support S.B. SRS appealed to the Court of Appeals.
While the appeal was pending before the Court of Appeals, the legislature enacted the Revised Kansas Code for Care of Children (Revised Code). L. 2006, ch. 200. The Revised Code specifically states that the appointment of a permanent custodian (formerly “permanent guardian”) without a termination of parental rights does not terminate the parent’s duty to provide child support and medical support. See K.S.A. 2006 Supp. 38-2272(h)(l). After providing the parties an opportunity to submit supplemental briefs on the retroactive application of the recent amendments, a divided panel of the Court of Appeals reversed. The majority applied the provisions of the Revised Code retroactively, holding that the appointment of a permanent guardian under the previous version of the Code did not reheve Bohrer of his common-law duty to support his minor child; therefore, applying the new law retroactively would not prejudice Bohrer’s substantive rights. State v. Bohrer, slip op. at 11.
Judge McAnany dissented, concluding that under the language of the permanent guardianship statutes in effect at the time, the permanent guardian assumed all parental obligations, including support. Because Bohrer had been relieved of the obligation to support S.B., Judge McAnany believed that retroactively applying the new statute imposing a support obligation prejudiced Bohrer’s substantive rights. State v. Bohrer, slip op. at D-2-D-3 (McAnany, J., dissenting).
Discussion
The issue we must determine is whether the appointment of a permanent guardian terminated Bohrer’s obligation to support S.B. Resolution of this issue involves interpretation of the statutes concerning permanent guardianship; thus, our review is unlimited. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007) (“The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court’s interpretation.”).
Statutes in effect in 2001
When the permanent guardianship in this case was created in 2001, the Kansas Code for Care of Children (Code) defined a “permanent guardianship” as
“a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining without ongoing state oversight or intervention by the secretaiy. The permanent guardian stands in loco parentis and exercises all the rights and responsibilities of a parent. A permanent guardian may be appointed after termination of parental rights or without termination of parental rights, if the parent consents and agrees to the appointment of a permanent guardian. Upon appointment of a permanent guardian, the child shall be discharged from the custody of the secretaiy.” K.S.A. 2005 Supp. 38-1502(w).
The statutes provided for three different methods of appointing a permanent guardian: (1) by parental consent (K.S.A. 38-1587); (2) after a finding of unfitness but without a termination of parental rights (K.S.A. 2005 Supp. 38-1583[g]); and (3) after termination of parental rights (K.S.A. 38-1584[b][2]). The permanent guardianship in this case was by consent and agreement of the parents, without a finding of unfitness or a termination of parental rights, as provided under K.S.A. 38-1587:
“(a) A permanent guardian may be appointed after a finding of unfitness pursuant to K.S.A. 38-1583 and amendments thereto or with the consent and agreement of the parents.
“(b) Upon appointment of the permanent guardian, the court shall discharge the child from the custody of the secretaiy.” (Emphasis added.)
2006 amendments
The Revised Code was enacted in 2006 and went into effect January 1, 2007. See L. 2006, eh. 200, sec. 121. The pertinent new statutes are set out below:
K.S.A. 2006 Supp. 38-2202(w) replaced the term “permanent guardian” with “permanent custodian,” which is defined as “a judicially approved permanent guardian of a child pursuant to K.S.A. 2006 Supp. 38-2272, and amendments thereto.”
K.S.A. 2006 Supp. 38-2272, governing the appointment of a permanent custodian, provides in relevant part:
“(a) A permanent custodian may be appointed:
(1) With the consent and agreement of the parents and approval by the court;
(2) after a finding of unfitness pursuant to K.S.A. 2006 Supp. 38-2269, and amendments thereto; or
(3) after termination of parental rights pursuant to K.S.A. 2006 Supp. 38-2270, and amendments thereto.
“(c) Subject to subsection (d), a permanent custodian shall stand in loco parentis and shall exercise all of the rights and responsibilities of a parent except the permanent custodian shall not:
(1) Consent to an adoption of the child; and
(2) be subject to court ordered child support or medical support.
“(e) Absent a judicial finding of unfitness or court-ordered limitations pursuant to subsection (d), a permanent custodian may share parental responsibilities with a parent of the child as the permanent custodian determines is in the child’s best interests. Sharing parental responsibilities does not relieve the permanent custodian of legal responsibility for the child.
“(h) If a permanent custodian is appointed after a judicial finding of parental unfitness without a termination of parental rights, the parent shall retain only the following rights and responsibilities:
(1) The obligation to pay child support and medical support; and
(2) the right to inherit from the child.
(3) The right to consent to adoption of the child. All other parental rights transfer to the permanent custodian.
“(i) If a permanent custodian is appointed after termination of parental rights, the parent retains no right or responsibilities to the child.”
Just as with the previous statutes concerning permanent guardianship, the Revised Code provides for the appointment of a permanent custodian in three ways: by consent of the parents; after a finding of unfitness but without termination of parental rights; and after a termination of parental rights. Unlike the Code provisions concerning permanent guardianship however, the Revised Code specifically states that where a permanent custodian is appointed without a termination of parental rights, the parent retains the obligation to support his or her minor child.
Consideration of amendments made while an appeal is pending
When an applicable statute is amended while an appeal is pending, and counsel for both sides have had an opportunity to brief and argue the amended statute, the appellate court will consider and construe the amended version of the statute. State ex rel. Stephan v. Board of Lyon County Comm’rs, 234 Kan. 732, Syl. ¶ 1, 676 P.2d 134 (1984).
Because counsel for both sides have had an opportunity to file briefs and argue the 2006 amendments to this court, we may consider the new statutes.
Whether the Revised Code should be applied retroactively
In determining whether a statute applies retroactively or prospectively, the general rule is that a statute operates only prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220, 73 P.3d 753 (2003). However, notwithstanding such clear language, when an amendment to an existing statute or a new statute is enacted which prejudices a party’s substantive rights, it will not apply retroactively. 276 Kan. at 221; Halley v. Barnabe, 271 Kan. 652, 657, 24 P.3d 140 (2001).
In this case, the Revised Code contains clear language indicating the legislature intended that the 2006 revisions to the Code would apply retroactively as long as doing so would not prejudice the rights of a party:
“In addition to all actions concerning a child in need of care commenced on or after January 1, 2007, this code also applies to proceedings commenced before January 1, 2007, unless the court finds that application of a particular provision of die code would substantially interfere with the effective conduct of judicial proceedings or prejudice the rights of a party or an interested party, in which case the particular provision of this code does not apply and the previous code applies.” K.S.A. 2006 Supp. 38-2283(a).
Thus, under both the case law on retroactive application and K.S.A. 2006 Supp. 38-2283(a), we must determine whether apply ing the 2006 amendments retroactively would prejudice Bohrer’s substantive rights. Substantive laws establish the rights and duties of parties. In re Tax Grievance Application of Kaul, 269 Kan. 181, 184, 4 P.3d 1170 (2000). A statute that creates a new liability for child support that did not previously exist establishes a duty and, therefore, affects a substantive right. Cf. Gardner v. Gardner, 22 Kan. App. 2d 314, 317, 916 P.2d 43, rev. denied 260 Kan. 992 (1996) (applying amendment changing rules for dormancy of child-support judgments retroactively did not affect substantive rights as the amendments affected only the procedure by which the substantive rights are enforced).
It follows then, that determining whether the Revised Code applies retroactively depends upon whether the permanent guardianship extinguished Bohrer’s support obligation when it was created in 2001. If it did, then the Revised Code would not be applied retroactively, as doing so would prejudice Bohrer’s substantive rights by creating a new liability for child support that did not exist before the amendments. On the other hand, if the permanent guardianship did not terminate Bohrer’s duty to support S.B., retroactive application of the amendments is unnecessary as the duly existed and continues to exist and, thus, it can be enforced. Therefore, the issue in this case depends entirely on determining whether the permanent guardianship, under the statutes in effect in 2001, extinguished Bohrer’s duty of support.
We note Bohrer’s argument that under K.S.A. 2006 Supp. 38-2283(a), the Revised Code only applies retroactively to child in need of care cases, which this is not. We also note Judge McAnany’s contention that K.S.A. 2006 Supp. 38-2272(h) would not apply to this case in any event because it states that the parents retain the obligation to pay child support and medical support only where a permanent guardian is appointed after a finding of unfitness. Judge McAnany questions the applicability of the amendments because there was no finding of unfitness in this case. Because resolution of the issue at hand either precludes retroactive application of the Revised Code, or makes it unnecessary, we do not reach these issues.
The common-law duty of support
Parents have a common-law duty to support their minor children, regardless of any statute imposing such an obligation. See Grimes v. Grimes, 179 Kan. 340, 343, 295 P.2d 646 (1956) (holding that a parent may not contract away his or her common-law duty to support his or her minor child). The court in Grimes discussed the nature of the common-law duty of support:
“ ‘By the great weight of judicial opinion in this country parents are under a legal duty, regardless of any statute, to maintain their legitimate minor children (20 R.C.L. 622), the obligation being sometimes spoken of as one under the common law and sometimes as a matter of natural right and justice, and often accepted as a matter of course without the assignment of any reason. . . .
“ ‘The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation . . . laid on them not only by nature herself, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue, if they only gave their children life that they might afterwards see them perish. By begetting them therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.” 1 Blackstone’s Commentaries, 447.’ ” 179 Kan at 343 (quoting Doughty v. Engler, 112 Kan. 583, 584, 211 Pac. 619 [1923]).
Termination of the common-law duty of support
This common-law duty of support continues until the child reaches the age of majority, or until the death of the child or the obligor parent. See In re Marriage of Schoby, 269 Kan. 114, 116, 4 P.3d 604 (2000). The common-law duty of support ends, however, if parental rights are terminated. State ex rel. Secretary of SRS v. Clear, 248 Kan. 109, 116, 804 P.2d 961 (1991). We have recognized three statutory methods by which parental rights are terminated: (1) adoption, under K.S.A. 59-2111 et seq.-, (2) termination of parental rights under K.S.A. 38-1581 et seq.; and (3) relinquishment of parental rights under K.S.A. 38-125 et seq. (now K.S.A. 59-2124). Clear, 248 Kan. at 116. Thus, the question is whether the appointment of a permanent guardian under K.S.A. 38-1587 is the equivalent of a termination of parental rights.
We faced a similar issue in Clear. In that case, the issue was whether a parent’s voluntary relinquishment of parental rights ex tinguished the parent’s duty to provide child support. To determine the issue, we compared relinquishment of parental rights to adoption and involuntary termination of parental rights — two instances in which parental rights and obligations are severed. We noted that the characteristic hallmark of a termination of parental rights is the “ ‘final and permanent settlement of all problems of custody and supervision by a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent and child with respect to each other and by replacement of the natural parent by another guardian or adoptive parent.’ ” Clear, 248 Kan. at 115 (quoting Roelfs v. Wallingford, Inc., 207 Kan. 804, 811, 486 P.2d 1371 [1971]).
Applying this standard, we concluded that the effect of a voluntary relinquishment of parental rights, like adoption and involuntary termination of parental rights, is “a complete severance of the child’s ties and relationship with his or her natural parents. The parent whose rights have been severed is relieved of all duties and obligations to the child.” Clear, 248 Kan. at 117. Accordingly, we held that a parent who relinquishes parental rights under K.S.A. 38-125 et seq. “is no longer a parent and is not liable . . . to repay SRS for any services or assistance expended on the children’s behalf.” 248 Kan. at 117.
Permanent guardianship is not one of the statutory means for termination of parental rights identified in Clear. Of course, the statutory procedure for appointment of a permanent guardian did not exist at the time of the Clear case. SRS argues that in enacting the permanent guardianship, the legislature did not intend to create a fourth method of termination.
The analysis employed in Clear provides a good framework for determining whether the appointment of a permanent guardian terminates a natural parent’s common-law duty of support. To begin, we look to the language of the permanent guardianship statutes.
“When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006); CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1296, 38 P.3d 666 (2002).” In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007).
Bohrer contends that under the plain and unambiguous language of the permanent guardianship statutes, the permanent guardian stands in the place of the natural parent and assumes all of the natural parent’s rights, duties, and responsibilities. First, Bohrer points to the language of K.S.A. 2005 Supp. 38-1502(w), which provided that the permanent guardian “stands in loco parentis and exercises all the rights and responsibilities of a parent.” Second, Bohrer points to K.S.A. 2005 Supp. 38-1502(d), which defined “parent” to include “a guardian, conservator and every person who is by law hable to maintain, care for or support the child.” (Emphasis added.)
SRS argues that Bohrer reads too much into the use of the term “in loco parentis” by construing it to mean a complete and total transfer of all parental rights, duties, and obligations to the permanent guardian. In support, SRS notes that the term is commonly applied to various third parties such as child care agencies, schools, etc., which, although they are said to stand in loco parentis, certainly do not assume all parental rights, duties, and obligations. See Dunn v. U.S.D. 367, 30 Kan. App. 2d 215, 231, 40 P.3d 315 (2002) (stating that “high schools act in loco parentis with respect to [their] students”). Moreover, it does not follow that simply because a person is standing in loco parentis, the natural parent is thereby relieved of all of his or her parental rights and duties.
We agree. Parental rights, duties, and obligations are not mutually exclusive. The fact the statute gives the permanent guardian in loco parentis status and the power to exercise “all of the rights and responsibilities of a parent” does not necessarily mean that the parent is thereby relieved of all parental rights and responsibilities. The focus of the language is on the duties and responsibilities assumed by the permanent guardian; it says nothing about the rights and duties retained by the natural parent. To determine whether the appointment of a permanent guardian terminates a parent’s duty of support, we need to look not only at the rights and obligation assumed by the permanent guardian, but also the rights and obligations retained or lost by the natural parent, as the case may be.
Moreover, the fact that K.S.A. 2005 Supp. 38-1502(d) defined a parent to include “a guardian, conservator and every person who is by law liable to maintain, care for or support the child” is also not a clear and unambiguous indication that the legislature intended a permanent guardianship to essentially transfer all of a natural parent’s rights and obligations to the permanent guardian. Because that definition uses the terms “guardian” and “conservator,” it is reasonable to conclude the legislature merely intended to include guardians and conservators for minor children appointed under the Act for Obtaining a Guardian or a Conservator, K.S.A. 59-3050 et seq.
Because the version of the Code in effect in 2001 does not clearly and unambiguously state whether appointment of a permanent guardian terminates the natural parent’s support obligation, we must determine legislative intent through statutory construction. See In re 285 Kan. at 79 (we apply canons of construction or rely on legislative history construing the statute only if the statute’s language or text is unclear or ambiguous).
The district court relied heavily on the legislative history behind the permanent guardian statutes in determining the legislature intended a permanent guardianship to be the functional equivalent of a termination of parental rights. As the district court noted, when amendments to the permanent guardianship statutes were being considered in 1999, S.B. 355 included language in the definitional section, 38-1502(w), which specified that a permanent guardianship created without termination of parental rights would not terminate a natural parent’s support duty:
“(w) ‘Permanent guardianship’ means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining without ongoing state oversight or intervention. The permanent guardian stands in loco parentis and exercises all the rights and responsibilities of a parent. When parental rights are not terminated, parents remain responsible for financial support. Upon appointment of a permanent guardian, the child in need of care proceedings shall be dismissed. A permanent guardian may be appointed after the termination of parental rights.” S.B. 355. (Emphasis added.)
This language was removed from the final version of the bill in the conference committee. Sen. J. 1999, p. 955.
This legislative history is not conclusive. We have no way of knowing why the conference committee removed the language concerning the continuing duty to support from the final version of K.S.A. 38-1502(w). As SRS argues, the committee may have believed that the continuing duty of support in circumstances short of termination of parental rights was obvious and thus the language was unnecessary. On the other hand, the district court inferred that the language was removed because the conference committee intended that the appointment of a permanent guardian would terminate the duty of support. It is also possible there was a disagreement over whether a permanent guardianship should terminate a natural parent’s duty of support, and the provision was removed to obtain passage. Each of these scenarios are based on nothing more than pure speculation. Thus, the evidence of the removal of the language providing for a continuing duty of support is of little value.
The district court also noted that Sue McKenna, SRS Legal Counsel for Family and Child Services, testified that upon awarding a permanent guardianship, the natural parent remains “the legal parent in name only.” Minutes of the House Judiciary Committee, March 12, 1998. SRS argues that the district court placed too much emphasis on the committee’s summarization of Sue Mc-Kenna’s testimony. SRS notes that the summary is not a full record, but is only a highly summarized rendition of the testimony and answers to questions presented that day.
SRS points to other legislative history the district court ignored; specifically, the written testimony of Joyce Allegrucci, representing the Children and Family Services Commission, which was presented to the Senate Judiciary Committee on March 29, 1999. In her testimony concerning S.R. 355, Joyce Allegrucci stated:
“All children deserve to have permanency. This can be accomplished through reintegration with their birth family, adoption, or permanent guardianship. Permanent guardianship is an appropriate permanency option for children in kinship arrangements. These arrangements enable a child to have a safe permanent home without severing all ties to birth parents and extended families. Permanent guardianship is also viable for those situations in which a parent has a strong bond with the child but is unable to meet the child’s daily needs. SB 355 completes work begun last session of creating a legal framework necessary to support these arrangements. It provides that parents may agree to the appointment of a permanent guardian and clarifies that state oversight ends when the permanent guardianship is established.” (Emphasis added.) Minutes of the Senate Judiciary Committee, March 29,1999.
That testimony does indicate that the legislature may have intended that the parents would retain some parental rights. The comment, however, is a bit vague for our purposes. It must also be considered in conjunction with Sue McKenna’s testimony that the natural parent remains a parent in name only. Essentially, these comments are contradictory and, thus, tell us very tittle about what the legislature actually believed when it enacted the statutes.
SRS argues that the legislative history behind the permanent guardianship shows that “[w]hile the primary tasks of caring for the child are passed to the permanent guardian, and the status of in loco parentis is granted to the permanent guardian, the appointment of a permanent guardianship is a lesser event than a termination of parental rights and duties.’’ The legislative history does not clearly indicate that permanent guardianship was intended to be a lesser event than termination of parental rights. One thing, though, is clear from the legislative history — permanent guardianship was intended to be a permanency alternative to termination of parental rights where a wilting and capable extended family member existed. See Minutes of the House Judiciary Committee, March 12, 1998, Attachment 1 (stating permanent guardianship “provides an alternative for a permanent family for children when reintegration is not a viable alternative and adoption is not in the best interests of the child); Minutes of the House Judiciary Committee, March 12, 1998 (testimony of Sue McKenna stating permanent guardianship is for extended kinship situations); Minutes of the Senate Judiciary Committee, March 29,1999, Testimony of Joyce AUegrucci, Attachment 1 (stating “[p]ermanent guardianship is an appropriate permanency option for children in kinship arrangements”).
Whether this alternative was intended to have the same legal effect as a termination of parental rights is not answered by the legislative history. Thus, the answer to the question presented in this case lies, as it did in Clear, in the comparison of the consensual permanent guardianship with the termination of parental rights found in adoption, voluntary relinquishment of parental rights, and involuntary termination of parental rights.
Adoption
K.S.A. 59-2118(b) describes the effect of adoption:
“When adopted, a person shall be entitled to the same personal and property rights as a birth child of the adoptive parent. The adoptive parent shall be entitled to exercise all the rights of a birth parent and be subject to all the liabilities of that relationship. Upon adoption, all the rights of birth parents to the adopted person, including their right to inherit from or through the person, shall cease, except the rights of a birth parent who is the spouse of the adopting parent. An adoption shall not terminate the right of the child to inherit from or through the birth parent.” (Emphasis added.)
See also K.S.A. 59-2136(i) (in termination of parental rights through adoption, “all rights of the birth parents to such child, including their right to inherit from or through such child, shall cease”).
As the court found in Clear, the adoption statutes contain the hallmark of a termination of parental rights:
“Our adoption statutes contemplate a complete severance of the child’s ties and relationship with his or her natural parents. The natural parent is relieved of all duties and obligations to the child. The effect of a decree of adoption is to confer a legal status of parent and child upon adoptive parents and adopted children, including the legal consequences, obligations, and incidents that arise out of the status of parent of the child.” Clear, 248 Kan. at 116.
Voluntary relinquishment of parental rights
K.S.A. 59-2124, concerning relinquishment of a child to an agency, provides for a complete termination of all parental rights, including the right to notice of subsequent adoption proceedings and the right to inherit from or through the child:
“(d) Except as otherwise provided, in all cases where a parent or person in loco parentis has relinquished a child to the agency pursuant to K.S.A. 59-2111 through 59-2143, and amendments thereto, all the rights of the parent or person in loco parentis shall be terminated, including the right to receive notice in a subsequent adoption proceeding involving the child. . . . Upon such relinquishment, all the rights of birth parents to such child, including their right to inherit from or through such child, shall cease.
“(e) A parent’s relinquishment of a child shall not terminate the right of the child to inherit from or through such parent.” (Emphasis added.)
See also K.S.A. 2006 Supp. 38-2268(b)(4) (providing that upon voluntary relinquishment, “all the rights of the parent shall be terminated, including the right to receive notice in a subsequent adoption proceeding involving the child” and “all the rights of the parent to such child, including such parent’s right to inherit from or through such child, shall cease”).
As the court stated in Clear, in a voluntary termination by relinquishment, all of the legal consequences, obligations, and incidents that arise out of the status of parent of the child transfer to SRS, the parent who relinquishes is no longer a parent. Clear, 248 Kan. at 117.
Termination of parental rights
The statutes in effect at the time the permanent guardianship was awarded in this case specifically stated that termination of parental rights terminates all of a parent’s rights to the child, including the right to inherit from or through the child and the right to consent to a subsequent adoption:
K.S.A. 2005 Supp. 38-1583(f) provided:
“A termination of parental rights under the Kansas code for care of children shall not terminate the right of the child to inherit from or through the parent. Upon such termination, all the rights of birth parents to such child, including their right to inherit from or through such child, shall cease.” (Emphasis added.)
See also K.S.A. 2006 Supp. 38-2269(g)(l) (same).
K.S.A. 38-1584(b) provided:
“(b) Actions by the court. (1) Custody for adoption. When parental rights have been terminated and it appears that adoption is a viable alternative, the court shall enter one of the following orders:
“(A) An order granting custody of the child, for adoption proceedings, to a reputable person of good moral character, the secretary or a corporation organized under the laws of the state of Kansas authorized to care for and surrender children for adoption as provided in K.S.A. 38-112 et seq. and amendments thereto. The person, secretary or corporation shall have authority to place tire child in a family home, be a party to proceedings and give consent for the legal adoption of the child which shall be the only consent required to authorize the entry of an order or decree of adoption.” (Emphasis added.)
See also K.S.A. 2006 Supp. 38-2270 (authorizing court to grant custody of child for adoption, and for such custodian to give consent for adoption, with no other consents required).
The common thread running through these statutes is that each specifically and expressly addresses the effect that adoption, relinquishment, and termination of parental rights have on the rights and obligations of the parent. Adoption, relinquishment, and termination of parental rights effect “ 'a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent and child with respect to each other.’ ” Clear, 248 Kan. at 115 (quoting Roelfs v. Wallingford, Inc., 201 Kan. at 811). In each, the loss of parental rights is complete and expressly includes the termination of the right to inherit from or through the child and the right to notice of and consent to subsequent adoption.
Although the statutes concerning the appointment of a permanent guardian by consent cover the rights, duties, and obligations assumed by the permanent guardian, they do not speak to the effect of such an appointment on the residual rights, duties, and responsibilities of the parent. This is in stark contrast to the adoption, termination of parental rights, and relinquishment of parental rights statutes, which expressly provide that the incidents of the natural parent’s relationship to the child are severed. And, we note, it is the absence of this language in the permanent guardianship statutes that the dissent does not address. Instead, the dissent would be satisfied to extrapolate severance from terms like “in loco parentis.”
A permanent guardianship appointment without termination of parental rights does not carry the characteristic hallmarks of a termination of parental rights. The legislature did not include in the permanent guardianship statutes the same language used in the adoption, relinquishment, and termination of parental rights statutes to effect a complete severance of the parent’s ties to the child. The legislature is presumed to act with knowledge of existing statutory law and cases. State ex rel. Board of Healing Arts v. Beyrle, 269 Kan. 616, 629, 7 P.3d 1194 (2000). If the legislature had intended permanent guardianship to be the equivalent of a termination of parental rights, it certainly knew how to use such language. That it did not is indicative of an intent to make the appointment of a permanent guardian by consent a lesser event than a termination of parental rights.
When this point is considered in conjunction with the legislative history indicating the intent to create a permanency alternative to termination of parental rights, it follows that a consensual permanent guardianship under K.S.A. 38-1587 is not the equivalent of a termination of parental rights, but is instead a lesser event. Moreover, as the Court of Appeals noted, “the termination of parental rights is an extremely serious matter and maybe accomplished only in a manner which assures maximum protection to all of the rights of the natural parents and of the child involved.” In re A.W., 241 Kan. 810, 814, 740 P.2d 82 (1987). To read termination of parental rights into the permanent guardianship statutes, as does the dissent, would result in severance of parental rights without these necessary and important protections, and without any clear indication that the legislature intended such a drastic effect.
In summary, the voluntary and consensual appointment of Ellen Holmes as permanent custodian did not relieve Bohrer of the common-law duty to support S.B. Thus, he had and continues to have the obligation to support S.B. This obligation may be enforced through an action for reimbursement and through an order for future child support and medical coverage. Because the permanent guardianship did not terminate Bohrer’s duty to support S.B., retroactive application of the Revised Code is unnecessary.
Accordingly, the decision of the Court of Appeals is affirmed and the district court’s decision is reversed. This case is remanded for further proceedings to determine the amount to be reimbursed to the State of Iowa, and to determine SRS’s request for an order of current child support and order to provide medical coverage.
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The opinion of the court was delivered by
Rosen, J.:
Jackie R. Poulton was convicted of manufacturing methamphetamine, possessing methamphetamine with intent to sell, possessing drug paraphernalia with intent to manufacture, possessing drug paraphernalia with intent to distribute, possessing drug paraphernalia with intent to consume, possessing marijuana, possessing drugs without a tax stamp, and endangering a child.
Prior to trial, Poulton filed motions to suppress the evidence obtained from two searches of his home, both of which the district court denied. The Court of Appeals reversed the convictions based on the November 20, 2003, search, finding that the search was illegal, but affirmed the convictions based on the December 27, 2003, search without addressing Poulton’s suppression issue that the second search constituted fruit of the poisonous tree. State v. Poulton, 37 Kan. App. 2d 299, 152 P.3d 678 (2007). We granted Poulton’s petition for review, and we now affirm in part and reverse in part the decision of the Court of Appeals.
The relevant facts, as stated by the Court of Appeals, follow:
“On November 20, 2003, Ed Mora, a special enforcement officer with the Kansas Department of Corrections, was seeking to serve an arrest warrant on Lisa Lamuz for violating her parole. Mora had been attempting to locate Lamuz for approximately 3 weeks. Deputy Coiy Graber told Mora that Lamuz might be staying at a residence at 6112 North Plum in Hutchinson. Mora, Graber, and Deputy Jeremy Hedges went to that address to attempt to serve the arrest warrant on Lamuz.
“Upon arriving at the residence, Graber went to the back of the residence, and Mora and Hedges walked towards the front door. Poulton came out of the house and met the officers on the porch. Mora told Poulton who he was. According to Mora, he asked Poulton if he could speak with him inside, and Poulton responded, ‘[Y]es, come on in.’ Hedges’ testimony differed from Mora’s in that Hedges never testified that Poulton explicitly consented to them entering the residence. Rather, Hedges testified that Mora asked if he could speak with Poulton and that Poulton responded yes and opened the door and let them in the house.
“According to Mora, once they were inside the residence, he asked Poulton if Lamuz was there. Poulton told Mora that Lamuz was in the back room and that he would go get her. Mora testified that Poulton walked towards the kitchen area of the residence, but he touched Poulton on the arm to stop him. Mora told Poulton that he would get Lamuz. As Mora walked towards the kitchen area, Lamuz walked out of a back room. Mora told Lamuz who he was and that she was under arrest. Mora led her into the front room and attempted to place handcuffs on her. Lamuz told Mora that she was not on parole anymore and that he had made a mistake. Lamuz indicated that she had paperwork showing that she was no longer on parole. Lamuz tried to turn away from Mora, but he forcefully grabbed her and placed her in handcuffs. Approximately five other individuals were in tire residence when this incident occurred.
“As Mora was attempting to handcuff Lamuz, Hedges saw Lamuz raise her hand. Hedges immediately called Graber into the residence. Graber entered through the back door as two individuals were attempting to leave the residence. Graber stopped them from leaving. One of the individuals and Poulton went into a back bedroom. Graber saw several rifles and shotguns lying against the doorway. Graber yelled to the other officers that he had seen guns. Graber ordered everyone out of the back bedroom.
“According to Graber, Poulton said that he needed to get Lamuz’ shoes out of the bedroom and that Graber could accompany him in there. When Graber went into the back bedroom, he saw a handgun lying on the bed. In addition, Graber saw a test tube containing what appeared to be methamphetamine residue, a razor blade with white powder residue, and an open package of lithium batteries. Graber relayed this information to Hedges who immediately applied for a search warrant.
“The officers confined everyone in the house to one area and handcuffed them. In addition, the officers performed patdown searches for safety reasons. When Poulton was told about the application for a search warrant, he said that his chest was hurting and that he thought he was having a heart attack. Emergency medical services (EMS) personnel were called to the residence.
“Before EMS personnel transported Poulton to the hospital, Graber performed a patdown search. Poulton was not in handcuffs at the time and was not under arrest. Graber testified that the patdown was done for EMS safety purposes. Although Poulton had been in handcuffs earlier, Graber testified that a patdown search had not been performed. During the patdown search, Graber reached for Poulton’s right pocket. Poulton told Graber that he should not stick his hand in there. Graber pulled syringes out of Poulton’s pocket.
“A search warrant was obtained for the residence. During their search, the officers seized baggies of methamphetamine, drug paraphernalia, and items commonly used in manufacturing methamphetamine.
“On December 27, 2003, Graber and three other officers returned to the residence to serve arrest warrants on four individuals, including Poulton. During the arrests, the officers saw a handgun on a bed in one of the bedrooms, paraphernalia used for methamphetamine, and small baggies containing a white powder that was consistent with methamphetamine. The officers obtained a search warrant for the residence. During their search, the officers seized drug paraphernalia, several baggies of methamphetamine, several baggies of green vegetation, and various items commonly used in manufacturing methamphetamine.
“From the November 20,2003, incident, Poulton was charged with eight drug-related crimes. Poulton moved to suppress the evidence obtained from the November 20, 2003, search and any statements made by him during or resulting from the search. Poulton argued that the officers never had consent to enter his residence. Poulton contended that the officers’ observations, which formed the basis for the search warrant, were made while they were illegally in his residence. The trial court held an evidentiary hearing on Poulton’s motion to suppress.
“At the suppression hearing, Poulton testified that he never gave the officers consent to enter his residence. Rather, Poulton testified that the entire conversation concerning Lamuz happened outside of his residence and that he told the officers he would go inside and get Lamuz. Poulton testified that he asked the officers if they would wait on his front porch, but the officers told him no. The officers followed Poulton into his residence.
“At the conclusion of the hearing, the trial court found that the officers had implied consent to enter Poulton’s residence. The trial court recognized that there were three different versions of what had occurred at Poulton’s residence based on the testimonies of Mora, Hedges, and Poulton. The trial court found that Poulton’s testimony that he told the officers to stay outside the residence was not credible. The trial court found that Mora indicated that he was going to get Lamuz, that Poulton indicated that he would do it, and that they all went in the house together. The trial court determined that the officers had implied consent to enter Poulton’s residence. The trial court denied Poulton’s motion to suppress.
“In a separate criminal case, Poulton was charged with eight additional drug-related crimes along with the crimes of contributing to a child’s misconduct and endangering a child. All of these charges resulted from the December 27, 2003, incident. Poulton moved to suppress the evidence obtained from the December 27, 2003, search of his home. The trial court conducted an evidentiary hearing and denied Poulton’s motion to suppress.
“Upon motion by the State, the trial court later consolidated Poulton’s two criminal cases. Poulton’s consolidated case went to a bench trial on stipulated facts. The trial court found Poulton guilty of two counts of manufacture of methamphetamine in violation of K.S.A. 65-4159; two counts of possession of methamphetamine in violation of K.S.A. 65-4161; one count of possession of lithium metal with the intent to manufacture a controlled substance in violation of K.S.A. 65-7006; one count of possession of anhydrous ammonia or pressurized ammonia with the intent to manufacture a controlled substance in violation of K.S.A. 65-7006; five counts of felony possession of drug paraphernalia in violation of K.S.A. 65-4152(a); two counts of possession of methamphetamine without tax stamps affixed in violation of K.S.A. 79-5204; one count of possession of marijuana in violation of K.S.A. 65-4162(a)(3); and one count of endangering a child in violation of K.S.A. 21-3608. Poulton was sentenced to a controlling sentence of 30 months in prison.” 37 Kan. App. 2d at 301-04.
The Court of Appeals found, and at oral argument on review the State conceded, that the initial search conducted on November 20, 2003, was illegal. See 37 Kan. App. 2d at 308, 310. We agree and affirm the decision of the Court of Appeals reversing the convictions based on the initial search. The issue relating to the imposition of the Board of Indigents’ Defense Services (BIDS) fees is not before us on review, and the decision of the Court of Appeals reversing and remanding the assessment of the BIDS fees to comply with State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006), must stand since it was not appealed.
The Court of Appeals affirmed Poulton’s convictions based on the December 27, 2003, search. The Court of Appeals elected not to address Poulton’s claim that the evidence seized during the December 27,2003, search was the fruit of the poisonous tree because Poulton failed to raise the issue in the district court and failed to argue that any exceptional circumstances applied, thereby fading to preserve the issue for appeal. 37 Kan. App. 2d at 310-11.
Appellate courts can consider new issues on appeal in the following circumstances: (1) Cases in which the newly asserted theory involves only a question of law arising on proved or admitted facts and that is finally determinative of the case; (2) cases raising questions for the first time on appeal if consideration of those questions is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) cases upholding the judgment of a trial court even though the trial court may have relied on the wrong ground or assigned a wrong reason for its decision. State v. Stevens, 278 Kan. 441, 454, 101 P.3d 1190 (2004) (citing State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 [1995]).
At least one of the first two exceptions applies in the present case. Poulton and the State entered into a written stipulation of facts for the bench trial. The written stipulation specifically renewed Poulton’s objection to the denial of his motions to suppress and preserved the issue of suppression for appeal. Because there are no factual disputes, the question of whether the evidence stemming from the second search should have been suppressed is a purely legal question. The first exception may apply if it is determined that the evidence should have been suppressed and the suppression finally disposes of the case. The second exception applies because the suppression of evidence based on the violation of Poulton’s rights under the Fourth Amendment to the United States Constitution implicates a fundamental right.
The fruit of the poisonous tree doctrine bars the admission of evidence directly seized during an illegal search as well as evidence obtained indirectly as a result of information learned or leads ob- tamed from the illegal search. Although not all evidence is fruit of the poisonous tree simply because it would not have become known without the illegal actions of the police, the doctrine bars any evidence that becomes known through exploitation of the illegality. Evidence that is sufficiently distinguishable so as to be purged of the primary taint is not considered fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); State v. Hodges, 252 Kan. 989, 1006, 851 P.2d 352 (1993); State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975).
Although the parties stipulated to the facts leading to the convictions, the State did not have the opportunity to analyze the facts in light of the fruit of the poisonous tree doctrine. The district court found that the initial search was valid, and Poulton did not argue that the second search and arrest constituted fruit of the poisonous tree. Because the parties have not had a full opportunity to argue this issue in light of the conclusion that the first search was illegal, we decline to find that the doctrine of the fruit of the poisonous tree necessarily applies to the facts of this case. We instead vacate the convictions based on the December 27, 2003, search and remand the case to the district court for the purpose of conducting a hearing to determine whether the evidence based on that search should be suppressed as fruit of the poisonous tree. Any appeal taken from that hearing will be docketed as an original appeal in the Court of Appeals..
Judgment of the Court of Appeals is affirmed in part and reversed in part. Judgment of the district court is reversed, and the case is remanded with directions to the district court.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought originally in the probate court of Wyandotte county by Mary Snitka, a minor, through Norman B. Sorter, her guardian, for the purpose of trying the title and ownership of personal property claimed by Mary Snitka, alleged to have been given her by William Eanoshke in his lifetime and immediately preceding his death as a gift causa mortis. William Eanoshke, a native of Russia, came to the United States seventeen years prior to his death, and for a time boarded in the home of John and Stella Snitka, who are the father and mother of Mary Snitka. Mary was eighteen years old at the time of the trial.
A supper party was held at the Snitka home on May 25, 1932, which William Eanoshke attended, and others were there. While there he was taken suddenly sick, and died within thirty minutes after the attack. Before this occurrence Eanoshke had boarded and roomed in another part of the city several miles from the house in which he died, and there he kept his personal belongings, consisting of a trunk, a bank book of a savings account in the Riverview State Bank, and some Postal Savings certificates, all of which latter items were located in Eanoshke’s trunk.
After his death and on June 30, 1932, the public administrator was by the probate court named administrator of the estate of William Eanoshke, and took possession of his personal property. Subsequently and on November 18, 1932, Mary Snitka filed a petition in the probate court through her guardian claiming to be the owner of the entire estate of William Eanoshke, under a gift causa mortis, and praying for an order of the court declaring her to be the owner of all the estate now in the hands of the administrator.
To that petition the administrator answered denying that the deceased gave and delivered to the claimant, or to any person for her, all or any part of the estate, and raising the question of the jurisdiction of the probate court to try title to the property involved. The issue was tried in the probate court, and the finding made in favor of the claimant, and on appeal to the district court the case was, by stipulation of the parties, submitted to the court without a jury, and upon the evidence and record produced, the court found that the deceased was engaged to be married to Mary Snitka, the ceremony having been set for July 6, 1932; that he was suddenly stricken with a fatal illness from which he died in about thirty minutes; that immediately prior to his death he realized that he was about to die, and stated to Stella Snitka, mother of Mary Snitka, in the presence of various witnesses, that he thought he was going to die, and that he gave to Mary Snitka all of his property; that on said occasion the said William Eanoshke informed Stella Snitka where the evidence of his property was located, and that Stella Snitka was to obtain the property and give it to the said Mary Snitka, and that shortly thereafter he died; that the personal property was located in deceased’s trunk several miles from the house in which he died, and the court found that William Eanoshke, by a valid gift causa mortis, conveyed all the property, and that the delivery thereof was complete and valid, and it rendered judgment accordingly.
The appellant claims the court erred in assuming jurisdiction to hear and decide the controversy; second, in finding that the deceased in his lifetime had made a valid gift causa mortis of all of his personal property to appellee as claimant.
The case was in fact a replevin action for the recovery of property. Mary Snitka proceeded on the theory that she was already the owner of the property and had acquired it by what had transpired in the thirty minutes preceding the death of William Eanoshke. To repeat the occurrence at the time of his death: Mary, it appears, had gone to bed, but a number of the partyoremained up; Eanoshke became suddenly sick and Mrs. Snitka said that he first went to bed and remained there about ten minutes, and came out saying, “Mother, I am very sick, give me a cup of hot water”; he said to her, “Mother, I am going to die; I want you to take my bank book and take my trunk and find that money and give it to Mary.” She told him, “You don’t die, you don’t look awful bad,” and he told her, “All right.” He said, “I am very sick,” and asked her to wake Mary up. He said to those that were present, “I cannot talk any more. Everything that is mine I give to Mary, nobody gets anything from me, it is all for Mary.”
One of the party testified that she was called back to the Snitka home and found Eanoshke had gone to bed, that he said, “Where is my Mary, she go for the doctor.” He said, “Everything I got I give to Mary. I guess I die, I am bad sick.” He was brought a drink of water and after a couple of minutes he died. He further stated, “Everything I got I give to Mary. You find it in my trunk.” The witness was asked, “Who was he talking to, to you?” And she answered, “Yes.”
The guardian who brought the action to recover the property for Mary Snitka proceeded on the theory that Mary had already become the owner of the property and was seeking to get possession of the same. He brought the action in the probate court. Probate courts are not courts of general jurisdiction, and it has been held that the probate court had no power to adjudicate the title to property. The appeal from the judgment rendered by the probate court vested the district court with only such jurisdiction as the probate court had. (Rightmire v. Rightmire, 120 Kan. 95, 242 Pac. 138.)
In Dunn v. Dunn, 112 Kan. 279, 211 Pac. 161, where the question of jurisdiction was involved, it was held that the probate court had no general jurisdiction and could not determine the matter of title to the property. It was said that the probate court could not adjudicate the controverted question of fact of partnership and that it could not adjudicate the title to the property. In Humbarger v. Humbarger, 72 Kan. 412, 83 Pac. 1095, where there was a charge of concealment of property and an action was brought to compel the production and delivery, and when it was developed that there was no concealment, the end of the investigation was reached, it was held that the probate court was without jurisdiction to determine whether there was any liability on the note claimed to have been concealed, and that the court was without power to adjudicate the question as between the administrator and third parties. In Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642, it was determined that the probate court had no jurisdiction to try the title and finally determine the ownership of such securities as were claimed in that case by the executor and another person not a party to the proceeding. That such adverse claims can only be determined in a court of competent jurisdiction.. (See, also, Leyerly v. Leyerly, 87 Kan. 307, 124 Pac. 405: Gille v. Emmons, 91 Kan. 462, 138 Pac. 608; Byerly v. Eadie, 95 Kan. 400, 148 Pac. 757; Yockey v. Yockey, 95 Kan. 519, 148 Pac. 665.)
The probate court was without jurisdiction to determine the ownership of the property, and the question will have to be tried in a court of competent jurisdiction.
Considerable argument has been made that a gift causa mortis required a matter of delivery, but since the probate court had no jurisdiction to try the question of title, the matter cannot be determined in this case.
The judgment is reversed with directions to dismiss the case.
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The opinion of the court was delivered by
Daw’son, J.:
Appellant was convicted of the crime of burglary by breaking and entering a drug store in the nighttime with intent to steal.
The facts, in brief, were these: One Schulz owned a drug store in a business building in Beloit. Its arrangement was in three parts —store room in front, storage room for merchandise in the center, and another room and hallway in the rear. On the night of the alleged crime all doors were locked and a light was burning in the front windows of the store building. A narrow window on the south side was in the shadow and.it supplied the only means of unobserved entrance in the nighttime. About 2 o’clock a. m. a witness heard the crashing of glass and reported the fact to the night watchman. The latter accompanied the witness to the drug store and discovered the broken window. The watchman went inside through the broken window and found the defendant crouched behind some stacks of merchandise. Outside the broken window a can of wax and a waxing machine were found, which apparently had come from the storeroom and which were not there when the watchman examined the premises a short time before these incidents occurred.
The principal defense was that defendant had been drinking heavily the preceding afternoon and evening, that he was intoxicated, and while he could not explain why he had gotten into the building in that irregular fashion and at that unseasonable hour he was too drunk to form an intention to steal.
The state adduced evidence which tended to show that when arrested the defendant’s actions and conversation gave no indication that he was intoxicated — if that fact would have been any excuse for his crime, a matter not necessary at this time to be decided.
Defendant’s first objection to the verdict and judgment is that his intent to steal was not established. We think the facts which were established — his breaking and entering the building at the unseasonable hour of 2 o’clock in the morning, and the finding of the wax and the waxing machine outside the broken window, and his effort to conceal himself from the watchman by crouching behind the piles of merchandise — fairly justified an inference that his intention was to steal. In State v. McClurkin, 122 Kan. 559, 252 Pac. 593, which was a burglary case, the evidential significance of the presence of the defendant at the place where the alleged crime was committed was considered. This court said:
“It was competent, of course, to show his presence at the garage when the alleged offense was committed, and the court would have been warranted in telling the jury that his proximity at the place about the time of its commission, together with other circumstances brought out in the evidence, might warrant an inference or a presumption that he participated in the crime. (16 C. J. 542.)” (p. 561.)
In the early case of State v. Maxwell, 42 Ia. 208, which was also a case of burglary, the breaking and entering were not disputed, but it was contended that the intent to steal was not shown. The court held:
“The intent with which an act is committed is not of the nature to be established by direct proof, but may be derived from the facts and circumstances attending the act.” (Syl. ¶ 2.)
In the recent case of State v. Woodruff, 208 Ia. 236, 239, the same rule, supported by authorities from many jurisdictions, is repeated. See, also, 2 Wharton’s Criminal Law, 11th ed., § 1025; 9 C. J. 1080; 4 R. C. L. 430.
Appellant next contends that he was entitled to a directed verdict, but this is simply another mode of attack on the sufficiency of the evidence to prove his intent to steal. He cites the case of State v. Riggs, 74 Minn. 460, in which it was held that where defendant came to the door of a club from which he had been suspended, at a, late hour in the evening in an intoxicated condition and with the avowed purpose of buying some whisky, and where his knocking on the door brought no response from an attendant inside, and defendant kicked a hole in the door and crawled through it into the club room, a majority of the supreme court held, quite reasonably we think, that the evidence was wholly insufficient to sustain a conviction of burglary. Appellant also cites the case of State v. McClurkin, 122 Kan. 559, 253 Pac. 592, but, a careful study of that case will yield no comfort to appellant.
Some criticism of the instructions given and refused is offered in appellant’s brief, but we discern nothing therein nor elsewhere in the record which approaches the gravity of prejudicial error, nor which would warrant further discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover specific real estate, or the value thereof, growing' out of an alleged abuse of a confidential relation.
Plaintiff brought the action in a triple capacity, as executrix of her deceased husband’s will, individually and as sole devisee under the will.
The petition on which the action was tried, among other things, alleged that T. E. Miller died testate on March 14, 1927, owning a one-half interest in an oil and gas lease on described real estate on which there were four producing oil wells, and the necessary equipment to operate the same, and at that time defendant Henderson owned the other undivided one-half, and that Miller and Henderson were jointly engaged as cotenants and mining partners in producing oil from said leasehold estate; that the will of decedent provided:
“I now own, jointly with J. L. Henderson, Jr., certain oil and gas leases, oil-producing property, equipment used in connection therewith, and in the event of my death prior to the time that such business matters are closed up and the property disposed of, it is my desire and will that said J. L. Henderson, Jr., shall take over and have full management and control of all of said jointly owned property, and with the approval and consent of the executrix of this will, shall have the power to sell and dispose of all or any part of said property; that he shall manage and operate the same and sell and dispose of said property, with the consent of said executrix, in such manner and at such times as he may deem for the best interest of himself and of my estate, and that he shall account for and pay over to said executrix the proceeds of the operation and sale of said property from time- to time as the same accrue.”
That the will was admitted to probate, and defendant Henderson from that time to October 10, 1928, operated the leasehold property and accounted to plaintiff as executrix for her share, having full knowledge of the terms of the will and acting in the nature of a trustee for the benefit of the plaintiff; that plaintiff is a woman unskilled in business or in oil and gas matters and relied upon defendant Henderson to handle the joint properties, and that in all matters set forth she relied upon and had full confidence in the acts and actions of defendant Henderson; that on October 10, 1928, the' Miller interest in the lease was levied upon and sold by the United States for payment of an assessment for income taxes, and that defendant Henderson, in violation of his trust, bid in the property and caused a conveyance thereof to be made to defendant Holden, who was alleged to be a partner of defendant Henderson; that Henderson paid to the United States for the property a sum less than $1,320; that plaintiff was present when the sale was held and desired to protect the property, but was informed by Henderson that she could not purchase by giving a check, but would have bo have actual cash and, relying upon and having full confidence in Henderson, she did not bid, but permitted defendant Henderson to bid, believing a reconveyance would be made to her; that at that time the property had a fair and reasonable market value of $25,000, and had it not been for the action of defendants she would have bid in the property and protected it; that since the sale defendants have refused to recognize her rights in and to the property, and claim they own the property to the exclusion of any rights of the plaintiff therein; that on October 9, 1929, she tendered Henderson $1,320 and demanded a reconveyance, which was refused, and she made an offer to tender into court the above or any other sum the court should require to reimburse defendants. A second cause of action was directed to a recovery of subsequent profits. The prayer was for reconveyance of a one-half interest, subject to payment of amounts due to defendants, or in lieu thereof for the value thereof alleged to be $25,000, and for an accounting.
We need not notice defendant Holden’s answer, for no judgment was rendered against him, and he is not a party to this appeal.
Defendant Henderson’s answer admitted certain parts of the petition as to Miller’s death, and the ownership of the lease, but denied any fiduciary relationship toward Miller or the plaintiffs, denied that he ever was a partner of Miller, or of Holden, or that he and Holden own or hold any interest in the lease as partners. He also set up the sale by the United States and his purchase thereat for $1,100; that he did not buy for himself but for defendant Holden, and that on December 3, 1928, he assigned to Holden the interest so purchased by him; that neither he nor Holden were in anywise interested in the federal income tax assessed against Miller and had no part in and did not procure the collector of internal revenue to buy or sell the leasehold interest which was sold at public auction to the highest bidder; that said collector advertised said property for sale as personal property and so sold the same; that plaintiffs were present at the sale and made no objection, never brought any action to set the sale aside, that it was valid and binding; that plaintiffs are guilty of laches in commencing their action; that the sale was held October 10, 1928, and the action commenced October 8, 1930, and that the reasonable value of the property at the time the same was sold was approximately the amount for which it was sold.
The trial court made findings of fact, which need not be set out in full, but are summarized as follows: The lease in question was originally acquired by Miller, who conveyed a half-interest to Henderson; they drilled five wells in 1922, four of which were producers. Miller and Henderson operated the lease until Miller’s death and Henderson and plaintiffs operated it thereafter until October 10, 1928. In 1926 Miller was badly injured and died six months later. During his disability Henderson consulted with the plaintiff concerning the property and continued such consultation and advice after Miller’s death.
“Mrs. Miller relied upon and had full confidence in the honesty, integrity and ability of the said defendant, J. L. Henderson, Jr., and relied upon and followed his advice and suggestions in her transactions relating to the lease in question.”
That the Miller interest was sold by the United States for satisfaction of unpaid income tax; that Mrs. Miller attended the sale and had a conversation with defendant Henderson and Mr. Moll, assistant internal revenue collector, who conducted the sale, in which she was advised she would have to have cash, and a draft on the estate or on her attorney would not be accepted and that the money could not be paid the next day; Mrs. Miller was ready, able and willing to bid and pay an amount in excess of the amount bid, but relying on the representations made, she made no bid, and the property was bid in by Henderson, who was permitted to give his check for the amount of his bid; that on October 10, 1928, the lease had a value of $12,000 and the sale of the Miller interest for $1,100 was for an inadequate price; that the operation of the lease from date of the sale to date of the trial produced a total net production of $12,497.87 at an expense of $7,192.46, and that from February to October, 1928, the value of oil sold was $4,597, or an average of over $500 per month. There are also findings as to assignment of Miller’s interest to a trustee during his lifetime as security for debts, and an appointment of the same trustee by the probate court after his death, and who continued to collect oil runs due until the sale October 10,1928. The court found that subsequent to the sale Henderson assigned a one-half interest, which he purchased at the sale, to defendant Holden, the assignment having been recorded on December 11, 1928. The court concluded as a matter of law that Henderson and Miller were mining partners, and that the partnership was not dissolved by Miller’s death, but continued and was in effect on October 10, 1928, and that the relationship of mining partners is the same as that of general partners, one of mutual trust and confidence, and each partner is held to strict rules of good faith, honesty and fair dealing, and that the actions of Henderson in stating or permitting statements to be made in his presence to Mrs. Miller to the effect she could not bid on the property without having actual cash with her, when he knew this to be untrue, were in violation of the rule requiring good faith between partners; that the sale price was for an inadequate sum, and in violation of the rule requiring good faith; that defendant Henderson having parted with the title cannot be compelled to reconvey and a money judgment should be rendered, and that the judgment should be for $6,000, less amount paid, $1,100, or a total of $4,900. On a motion of defendant to set aside certain findings and to enter others, the court reduced the value of the lease to $10,000, and ordered that judgment be rendered for $5,000, less the amount paid of $1,100, or a total of $3,900. Defendant’s motion for a new trial was overruled and he appeals, urging especially the question whether there was a mining partnership and, if so, was one of the partners competent, in the absence of fraud, to purchase his copartner’s interest at a tax sale, and was a fraud perpetrated, and the question whether the judgment was excessive.
Although the trial court found as a matter of law that a mining partnership- existed, as we view the matter, whether its conclusion is correct or not, does not affect the ultimate result as expressed in the judgment. (Saylor v. Crooker, 97 Kan. 624, 156 Pac. 737; Quinton v. Kendall, 122 Kan. 814, 253 Pac. 600.) The real question is whether a confidential relation existed between Mrs. Miller and the appellant, and whether the court’s finding of fact that after Miller’s injury Henderson consulted and advised with the plaintiff concerning the properties in which they were jointly interested and continued such consultations and advice after Miller’s death, and that Mrs. Miller relied upon and had full confidence in the honesty, integrity and ability of defendant Henderson and relied upon and followed his advice and suggestions in her transactions relating to the lease in question, is supported by competent evidence. There was conflicting evidence on the subject, but the trial court having found in favor of the plaintiff, we need review the matter no further than to see that there is support in the evidence for the finding. It was shown that the lease was acquired and developed; that Henderson and Miller jointly paid the expenses of operation; that by mutual agreement the share going to Henderson was paid separately to him; that in 1922 Miller was in financial difficulty and made an assignment of his share to a trustee, who was, after Miller’s death, appointed by the probate court as a trustee for the Miller interest to collect the oil runs, pay necessary expenses and account to the executrix; that prior to Miller’s death the trustee paid the expenses for both defendant and Miller, defendant paying his share to the trustee who had practically looked after the lease. After Miller’s death and until the sale, the pumper on the lease had purchased the small materials, which was all that was purchased in the last years, and the trustee paid the bills. Defendant stated he had known Miller for twenty-five years and had been in deals with him, but he denied any partnership although they carried a firm name for convenience. After Miller’s death there was a conference between the parties and the trustee respecting the appointment of the trustee by the probate court. After the injury to Miller his wife talked with defendant about the lease in question and other property in which the two were interested. At the conference after Miller’s death the provision of the will quoted above was discussed, and the arrangement made to have the trustee appointed to continue operation of the lease. After the sale by the United States was advertised, plaintiff called defendant and talked with him and asked him what she could do about it and he told her she could bid. She attended the sale, which was conducted by Mr. Moll, deputy revenue collector. Defendant came over to where plaintiff was and asked her if she were going to bid and she asked him why he wanted to know and he answered he wanted to know who his partner was. Mr. Moll approached and asked if she were Mrs. Miller and if she intended to bid and if she understood the terms of the sale, and said, “You understand you must have the cash in hand”; that defendant stood by and heard the conversation; that she told Moll he could draw a draft on the estate or on her attorney or could go to the attorney’s office and complete the deal the next day, and Moll said she could not do that, she must have the cash; that she didn’t have the cash and therefore did not bid; that the sale was held immediately after the conversation and defendant bid in the property for $1,100, for which he gave his check, no cash being then used; that almost a year later she tendered defendant the amount of his bid with interest. Plaintiff further testified that on account of the course of dealings which she and her husband had had with defendant she had confidence in him, sought advice from him and believed what he told her. She also testified that on the day of the sale the estate was in funds in the bank to pay her bid on the lease, but she did not have any cash with her. After the sale was had the trustee paid her the share of oil runs due to the estate in the amount of about $1,700. It is not intended by the above to give a complete statement of the course of dealings nor of defendant’s version from which a contrary conclusion might be reached, but only to show that there was ample evidence to justify the trial court in finding that a confidential relationship existed.
In Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, the third paragraph of the syllabus reads:
“A fiduciary relation does not depend upon some technical relation created by, or defined in, law. It may exist under a variety of circumstances, and does exist in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.” (Syl. ¶ 3.)
And in the opinion it was said:
“The courts have consistently refused to give an exact definition to, or to fix definite boundaries of, that class of human relations which, by principles of common honesty, require fair dealing between the parties, and which is commonly known as fiduciary relations.” (p. 232. See authorities cited in support.)
As has been stated, whether the trial court’s conclusion of law that there was a mining partnership was right or wrong, is immaterial. Its finding that a fiduciary or confidential relationship existed is sustained by competent evidence. As we see the matter, it is likewise of no moment that Henderson now says he bought for Holden. He could not do for Holden what he could not do for himself. The result that must follow is plain, the injured party must be restored to his or her rights in the premises.
Complaint is made that the court’s finding as to the value of the lease is not supported by the evidence. It would extend this opinion to too great a length to review all the testimony. There was a dispute; plaintiff produced witnesses who valued the leasehold as high as $15,000, while defendant produced witnesses who valued it as low as $1,200, said to be its salvage and only value. Defendant himself valued it at $2,500. The above was opinion evidence. To be considered in connection with it was testimony offered by the defendant that in the period from the sale on October 10, 1928, to the time of the trial in January, 1933, a period of about fifty months, the lessees’ share from sales was $12,497.87 at an expense of $7,192.-46, leaving a profit of $5,305.41, and that for a period of about seventeen months just preceding the sale the share paid the estate was over $1,700. The court’s finding was based on substantial testimony.
The court made no specific finding as to laches, but it appears that the action was brought within the statutory period. In addition, there was no showing whatever that defendant was in any manner prejudiced by any delay there may have been. (City of Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589; 1 C. J. 1153; 21 C. J. 221; 10 R. C. L. 396.)
In the trial below the plaintiff did not seek to have the sale by the United States set aside, but contended that defendant Hender son could not, under the circumstances, purchase to her injury, and that if he could not reconvey the property to her upon being made whole, that he should then pay her the value of what she lost by reason of his conduct. Paraphrasing what was said in Lindkolm v. Nelson, supra, we may say: Courts of equity are not required to close their eyes to a transaction of this character. It was not error for the court to render the judgment it did. Plaintiffs get what rightfully belongs to them and defendant loses only the profits qf an unconscionable transaction.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal by defendant-appellant from a jury conviction of one count of aggravated robbery. K.S.A. 21-3427.
On March 29, 1976, Dennis Harris, the operator of an automobile repair shop, was robbed at gun point by two black males. Later that same day Harris made a positive identification, from photographs shown him by police, of the defendant as one of the robbers. Harris again made a positive identification of the defendant on March 30th from different photographs shown to him.
On April 2, 1976, Detective Shelby Johnson went to an address in Kansas City, Kansas, to question defendant Walker. When he knocked at the door it was answered by a young woman who stated Walker was not home. Johnson asked the woman to have Walker call him and left his card and telephone number. Later that day Walker called and made an appointment to see Johnson; however, he failed to show up. On April 5, 1976, Johnson returned to the same house and again attempted to contact Walker. The same woman answered the door and advised that Walker was not home. Johnson, being suspicious, left the premises and drove a short distance where he parked his car in a position to keep the residence under surveillance. Approximately twenty minutes later a car drove up, Walker ran out of the house, entered the car and it departed. Johnson followed in his police car. When the driver of the first car and Walker became aware they were being followed, the driver stopped the car, and Walker jumped out and ran, eluding the detective at that time.
On July 11, 1976, Walker was in custody in Kansas City, Missouri, where he was identified in a police lineup by Harris and subsequently returned to Kansas City, Kansas, for trial.
Evidence of the defendant’s flight from Detective Johnson on April 5, 1976, was admitted at trial, over defendant’s objections, to establish the defendant’s consciousness of guilt. Appellant contends the admission of such evidence was prejudicial error entitling him to a new trial.
Appellant does not attack the general rule that evidence of flight may be admissible in order to establish the defendant’s consciousness of guilt. 29 Am. Jur. 2d, Evidence § 280; 22A C.J.S., Criminal Law § 625; State v. McCorgary, 218 Kan. 358, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976). Appellant argues that admission of “flight” evidence is limited to circumstances which directly connect it to the charged crime for which defendant feels guilt, as when the defendant flees the actual crime scene. In essence, appellant is asking this court to qualify the admissibility of “flight” evidence with a time and knowledge limitation. The former would require the flight to occur immediately or soon after the alleged crime. The latter would require the prosecution to show the accused had reason to believe he was being sought in connection with commission of the offense in question.
It is well settled that conduct of the accused following the commission of an alleged crime may be circumstantially relevant to prove both the commission of the acts charged and the intent and purpose for which those acts were committed. Among such conduct is flight of the accused. Strom v. United States, 50 F.2d 547, 548 (9th Cir. 1931); Bird v. United States, 187 U.S. 118, 131, 47 L.Ed. 100, 23 S.Ct. 42 (1902); Allen v. United States, 164 U.S. 492, 499, 41 L.Ed. 528, 17 S.Ct. 154 (1896); 19 Fed. Practice Digest 2d § 351(3), p. 592 (West 1976) andpp. 72-73 (1978 Supp.).
The United States Supreme Court has expressed certain reservations about the probative value of flight evidence:
“[W]e have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime. In Alberty v. United States, 162 U.S. 499, 511 [40 L.Ed. 1051, 1056, 16 S.Ct. 864], this Court said:
‘. . . it is not universally true that a man, who is conscious that he has done a wrong, “will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right and proper;” since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that “the wicked flee when no man pursueth, but the righteous are as bold as a lion.” ’ ” Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963).
In light of the position of the United States Supreme Court as to the probative value of flight evidence, its admission, although proper in many cases, should be regarded with caution.
The general rule is that flight after the commission of a crime is admissible regardless of the time or stage in the proceedings when the flight occurs. It is not necessary that the flight occur immediately after the perpetration of the crime. It may occur before filing formal charges, before arrest, after indictment, or after arrest. Moreover, direct proof that the accused had knowledge of his possible arrest is not necessary, particularly where there is evidence in the case from which such fact may be inferred. 22A C.J.S., Criminal Law § 625(b).
Although this court has not had the occasion to define the limits of admissibility regarding flight evidence, its general admission has long been recognized. State v. McCorgary, 218 Kan. 358; Hanks v. United States, 388 F.2d 171 (10th Cir. 1968); State v. Townsend, 201 Kan. 122, 439 P.2d 70 (1968); State v. Martin, 175 Kan. 373, 265 P.2d 297 (1953); State v. Grady, 147 Kan. 268, 76 P.2d 799 (1938); State v. Hays, 113 Kan. 588, 215 Pac. 1109 (1923); State v. Woodruff, 47 Kan. 151, 27 Pac. 842 (1891).
The admissibility boundaries of other jurisdictions show a wide variation regarding both the time of the flight and the requirement of knowledge by defendant that he is being sought. The Eighth Circuit would appear to impose the most severe restrictions upon the admissibility of flight evidence. In United States v. White, 488 F.2d 660 (8th Cir. 1973), the defendant fled when confronted by federal agents five months after the crime. There was no evidence that the defendant knew at the time of his flight that he was being sought for the crime charged, nor was he so advised when confronted. The court found error in the giving of a flight instruction and stated that if the inference of guilt to be drawn from flight is to have any validity, the trial court should assure itself that some evidence exists showing knowledge by the defendant of an accusation of the specific crime charged.
The Ninth Circuit in Embree v. United States, 320 F.2d 666 (9th Cir. 1963), held that the defendant’s flight constituted neither admission nor evidence of guilt because there was no evidence indicating he was informed, previous to his flight, that he was being sought for the offense charged.
The restrictive nature of Embree was qualified in the later case of Shorter v. United States, 412 F.2d 428 (9th Cir.), cert. denied 396 U.S. 970 (1969). In that case, the defendant fled from an encounter with police three weeks after a bank robbery. Evidence of flight was admissible where there was evidence to infer that the defendant knew he was being sought for the robbery. There is also language in the opinion indicating that this showing of knowledge is not necessary.
The Seventh Circuit has refused to restrict the scope of flight evidence as severely as the Eighth Circuit. However, in cases in which a defendant’s flight occurs a substantial time after the crime, defendant’s knowledge that he is accused of or sought for the crime charged will be a significant consideration on the admissibility of flight evidence. United States v. Jackson, 572 F.2d 636 (7th Cir. 1978). In Jackson, evidence of flight occurring 3-Vz months after the crime was held to be inadmissible.
In the state courts there is also a split of opinion regarding the necessity of knowledge by the defendant that he is being sought for the specific crime in question. In People v. Newton, 52 Cal. Rptr. 727 (1966), the Supreme Court of California stated that in order for flight to have evidentiary force, it must take place under such circumstances that it appears the defendant knew he was charged with the crime involved and was attempting to avoid apprehension for that offense. In that case, defendant fled from an encounter with police in a neighborhood where eight days previously a burglary, rape and robbery took place. Flight evidence was held inadmissible. See also People v. Alvarado, 164 Cal. App. 2d 603, 331 P.2d 157 (1958).
Illinois, in one case, required actual knowledge and in a later case relaxed the requirement to inferential knowledge. In People v. Harris, 23 Ill. 2d 270, 178 N.E.2d 291 (1961), the Supreme Court of Illinois said that the inference of guilt that may be drawn from the flight depends upon the defendant’s knowledge that the crime has been committed and that he is or may be suspected. In People v. Griffin, 23 Ill. App. 3d 461, 318 N.E.2d 671 (1974), a robbery occurred on November 12th and defendant fled from police on December 24th. The court held the flight was not too remote and defendant’s knowledge that he was being sought for the crime in question could be inferred from the surrounding circumstances.
The majority of jurisdictions are not as strict as the Eighth Circuit White case. Evidence of flight is generally held to be admissible regardless of time lapse, and knowledge on the part of the defendant of accusation, if required at all, may be inferred from the surrounding circumstances. Evidence which tends to weaken the inference of guilt implicit in flight, such as a lengthy interim between crime and flight, does not render the evidence of flight inadmissible, but is merely to be considered by the jury in weighing the effect of such evidence. Torcía, 1 Wharton’s Criminal Evidence, § 214 (13th ed. 1972 and 1979 Supp.)
In the Missouri case of State v. Ball, 339 S.W.2d 783 (1960), unexplained flight and resisting arrest, thirty days after the crime charged, was held to be relevant circumstantial evidence and the lapse of time between the commission of the crime and the flight was held to go to the weight of the evidence rather than its admissibility. A similar result was reached in Davis v. State, 237 Md. 97, 205 A.2d 254 (1964), cert. denied 382 U.S. 945 (1965). See also United States v. Craig, 522 F.2d 29 (6th Cir. 1975); Cox v. State, 170 Tex. Crim. 128, 338 S.W.2d 711 (1960).
In United States v. Malizia, 503 F.2d 578 (2nd Cir. 1974), cert. denied 420 U.S. 912 (1975), the court held that the existence of a warrant or proof of defendant’s knowledge that he is being charged with a crime are not prerequisites to the admissibility of flight evidence. See also United States v. Miles, 468 F.2d 482 (3d Cir. 1972); Shorter v. United States, 412 F.2d 428; United States v. Ayala, 307 F.2d 574 (2d Cir. 1962); State v. O'Meara, 190 Iowa 613, 177 N.W. 563 (1920).
With this background we now turn to the case at bar. The robbery of Harris took place March 29th and only four days later, on April 2nd, Detective Johnson attempted to contact the defendant for questioning. Defendant knew he was being sought as he actually did contact Johnson on that same day but failed to appear for a subsequent appointment. While appellant may not have had actual knowledge of the specific reason Johnson was seeking him, he certainly knew it was in connection with a police matter. Only three days later, on April 5th, the flight from Detective Johnson occurred. In the present case, a positive identification having been made, it is reasonable to assume that appellant knew or suspected he was being sought in connection with the Harris robbery. Certainly there was no lengthy or unreasonable lapse of time.
We do not deem it advisable to adopt the restrictive rule of White but are of the opinion that the less restrictive rule is the better one. Actual knowledge by a defendant that he is being sought for the crime in question is not a prerequisite to the admission of evidence of flight as tending to show consciousness of guilt but merely goes to the weight to be given such evidence. This is especially true when the flight occurs within a reasonable time of the crime. Possibly such a precautionary prerequisite might be justified in situations where the flight occurs months later. However, we deem it the better reasoned authority to admit flight evidence for consideration by the court or jury with such factors as time lapse and accusation knowledge going to the weight to be given the evidence. The evidence was properly admitted.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This action originated in the probate court when certain legatees took exceptions to the accounts of an executor and trustee. The probate court decided in favor of the executor. The legatees and administrator with the will annexed appealed to the district court. There the action of the probate court was approved. The administrator appeals to this court.
F. C. Werner was named as executor in the will of John Akins. He qualified in December, 1916, and acted as such until he resigned on May 15, 1931. In addition to naming F. C. Werner executor, the will of John Akins made him trustee of a residuary estate provided for in the will. For the sake of convenience he will be referred to here as executor. The beneficiaries of this residuary estate are three daughters of John Akins. They are appellants in this action. Under the will Werner was given the power and authority “to invest any fund or funds coming into his hands in responsible interest-bearing securities.”
During the time that Mr. Werner was executor he filed fourteen accounts with the probate court, including the final account which covered the last two and five-sixths months.
On January 28, 1931, one of the beneficiaries filed a petition asking for the removal of Werner as executor. This application was heard and taken under advisement by the court. Before the cause was decided Wemer resigned. M. G. Vincent was then appointed administrator with the will annexed. When Wemer filed his final account exceptions to it were taken by the three beneficiaries. The probate court approved the accounts of the executor notwithstanding the exceptions, except for a modification whereby he surcharged the executor with $100 claimed for services under the final report, and $150 claimed for fees paid his attorneys in resisting the removal of the executor.
Appeal was taken by the administrator and the three beneficiaries to the district court. The notice of appeal was in the name of the three beneficiaries. The affidavit to this notice was executed by Vincent, the administrator with the will annexed. His name was not included in the notice. When the case came on to be heard in the district court the executor moved to dismiss it on the ground that the district court did not have jurisdiction. The court then permitted the amendment of the notice by inserting in the body thereof the name of Vincent. The executor objected to this and argues in this court that his motion to dismiss the appeal to the district court should have been sustained.
That contention will be settled before we 'deal with the merits of the action. The statute which provides for appeals to the district court and upon which the executor relies is R. S. 22-1102. It is as follows:
“All appeals shall be taken within thirty days after the making of such decision. Notice of such appeal shall be given in open court and entered on the record or by written notice to the opposite party, or his attorney of record; proof of the service of such notice must be made by affidavit of the party taking the appeal showing service of such notice, which affidavit must be filed with the probate court.”
The executor points out that the proof of the service of this notice was an affidavit signed by the administrator. It is argued that the administrator did not take the appeal since his name did not appear in the body of the notice. Hence, the notice of appeal was defective, since the time for appealing was long past when the amendment was made inserting the name of Vincent. At the hearing on the motion to dismiss the affidavit of the stenographer who prepared the notice of appeal was introduced. This affidavit was to the effect a lawyer, since deceased, had dictated the notice, and it had been the intention to appeal on behalf of the administrator; that the appeal was not taken for the purpose of vexation or delay and that the name of Vincent was omitted from the body of the notice through inadvertence.
The answer to the argument of the executor is found in R. S. 60-3310. That section is as follows: '
“Any notice of appeal may be amended at any time by bringing in additional parties or otherwise, before the hearing, as to the appellate court may seem fit, and in case such court shall deem it necessary that it have papers or entries that have not been transmitted to it, it may require their immediate certification and transmission.”
In the case of Ryan v. Cullen, 89 Kan. 879, 133 Pac. 430, the court refused to dismiss an appeal where several remaindermen were not made parties. The court considered and decided the case on- its merits even though the notice in that case was not actually amended. In the case of Boss v. Brown, 132 Kan. 86, 294 Pac. 878, the appeal was taken from the judgment and verdict only. When, it became apparent that all the errors of which complaint was made related to rulings of the trial court this court granted leave to the appellant to amend his notice, under R. S. 60-3310. To a similar effect is the case of Sheridan v. Phillips Pipe Line Co., 134 Kan. 260, 5 P. 2d 817. In that case the bond given ran to a different oil company altogether. The court permitted the amendment of the bond to show the correct company. The Sheridan case contains a comprehensive discussion of the cases. In this case it is plain that the intention was to appeal on behalf of the administrator, and that the'name was omitted inadvertently. It is plain that the executor was not misled in the preparation of his case. Indeed, it was stated by the executor that he only discovered the omission of the name of Vincent from the notice the night before the motion to dismiss the appeal was argued on December 29, 1932. In view of all these circumstances we have concluded that the motion to dismiss was technical in the extreme. Certainly the ends of justice were best met by overruling the motion.
The executor next argues that the questions raised by the appel lants here were not properly raised before the trial court. The statute on this matter is R. S. 22-915. It is as follows:
“When the account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to the account at any time within six months thereafter; and upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein,” etc.
The journal entry of the probate court contains the following recitation:
“Thereupon there is filed by Blanche Akins Wilcox, Maude Akins and Laura C. Burkett their exceptions to the final report and all previous reports of F. C. Werner as executor.”
The executor argues that there were no exceptions actually filed, and that on that account there was nothing before the probate court. This question was not raised by the executor in district court, but is raised for the first time in this court. The hearing in probate court was upon the question of the approval of the reports of the executor. Nothing was necessary to be filed for this hearing to be had other than the transcript and what happened in the probate court, the notice of appeal, affidavit of appeal and bond. (See R. S. 22-1102, 22-1103 and 22-1104.) The appeal is from the order approving these accounts. The statute referred to is the provision for opening an executor’s accounts where they were settled without notice to an interested party. All the questions urged here were raised by appellant before the trial court when requested findings of fact and conclusions of law were submitted covering every phase of the case.
The executor argues that no motion for a new trial was filed after the findings of fact and conclusions were finally made. What happened was that the court made findings of fact and conclusions of law, then each side filed motions for a new trial and to modify the findings. The court did modify the findings in favor of the executor and denied the motion of appellants for a new trial. No further motion for a new trial was necessary. With these preliminary questions out of the way we will consider the case on its merits.
The first ruling of the trial court of which appellant complains is that the manner in which the executor handled the money belonging to the estate did not constitute such commingling of this money with his own funds as to make him liable for compound interest on the difference between what he stated in his report was on hand and what was actually on hand. There can be no doubt that the executor commingled the funds that he held as executor and his private funds. His testimony is convincing that this was true. In fact, the trial court did not directly find to the contrary. The court found:
“He deposited some of the money belonging to the estate in his own personal bank accounts in various banks in Pittsburg, Kan., and he kept some of the money belonging to the estate in safety-deposit boxes in the bank and in his own safe in his office, having a sufficient amount of money at all times to cover all balances due the estate of John Akins, deceased, but commingled some of the money of the estate with his own.”
The executor occupied a fiduciary relation of the very highest order with respect to the fund in question. There is a strict rule relative to the duties of executors in keeping their accounts. In 65 C. J. 898 the rule is stated as follows:
“The burden is on the trustee to exhibit a clear and satisfactory account, all doubts and obscurities being resolved against him, and any items whose ■accuracy is not sufficiently established by him will be rejected.”
In the case of McKibben v. Byers, 138 Kan. 216, 25 P. 2d 357, this court said:
“Byers rested under a duty to McKibben to keep and render clear and accurate accounts with respect to conduct of the business in which they were engaged. The burden of proof was on Byers to show he was entitled to each credit he claimed. Mere failure to keep proper accounts and to preserve vouchers may result in failure to establish claimed credits; and failure to produce vouchers may require application of the presumption that if the best evidence were produced it would be against allowance of the credit.” (p. 221.)
In the accounts of the executor it is manifest that at the time each report was' made there never was at any time the amount of cash in the account of Werner as executor that his report stated. By agreement of the parties the accounts of the executor were audited, and the auditor’s report, as well as the evidence of the executor himself, showed this condition. The explanation of this offered by the executor was that he had $8,500 in currency in a lock box. When interrogated about this he could not tell how this amount of cash was accumulated nor how it was disbursed. He stated on redirect examination that he built up this cash out of the checks on the Preston, the Christian, the Dorr ell and the Wright loans. The trouble about this explanation is that he had testified that he put the proceeds of these loans in his personal account, and gave as a reason for it that such a course was necessary in order to enable his clerks to handle matters in his absence.
The trial court took the view that all that was necessary for the administrator to do was to account for all the money that was turned over to him or came into his hands. The basis of the claim of appellants is that the estate is entitled to receive interest on all the money belonging to the estate that was carried in the personal account of the executor, and thus commingled with his own funds. The money of this estate never at any time belonged in the personal bank account of the executor. In the case of Charles v. Witt, 88 Kan. 484, 129 Pac. 140, this court said:
“The allowance of compound interest against the guardian was not error. In Gassell v. Gassell, 147 Cal. 510, 82 Pac. 42, the guardian mingled the wards’ funds with his own without any authority from the court, and failed to keep an account from which an accounting could be rendered. The court held that it was not error to charge him with compound interest although he was guilty of no fraud. This rule is applicable alike to guardians and executors as to other trust relations. (1 Church, New Probate Law and Practice, p. 204; Guardianship of Dow, 133 Cal. 446, 65 Pac. 890, 892.)” (p.493.)
In the case of Purdy v. Johnson, 78 Cal. App. 310, the court approved the charging of compound interest upon the funds of the beneficiary used improperly. The court said:
“The rule is not adopted for the purpose of punishing the trustee for any intentional wrongdoing in the use of the trust funds, but rather to carry into effect the principle, enforced by courts of equity, that a trustee shall not be permitted to make any profit from the unauthorized use of such funds; it is intended to secure fidelity in the management of trust estates in order to fully realize any profit that the trustee may have made.” (p. 319.)
See, also, Brown v. Tydings, 149 Md. 22.
The theory argued by the executor and followed by the trial court is that the executor only had to be able to pay the amount of money that had come into his hands as trustee, on demand. This is not the rule. The law is extremely jealous of what is done with the beneficiaries’ money by a trustee. He must keep it by itself. To approve the commingling of the beneficiaries’ money with that of the trustee would subject the trustee to too great a temptation to use this money and cover up the fact with one subterfuge or another. As good a way as any to guard against this is to hold that the trustee is liable to the beneficiaries for compound interest on the m^nev of the beneficiaries which the trustee thus commingles with his own.
During the trial of this case an audit of the accounts of Werner was made pursuant to agreement of both parties. The auditor testified that in making this audit he used the original reports filed with the probate court, paid checks and receipts that were on file in probate court, Werner’s cash book, check stubs and certain paid checks which Werner had in his possession. He also used duplicate deposit slips furnished by him. This report enables us to ascertain just how much cash the executor had on hand in his account as executor at the time of making his report, also how much he reported he had on hand. It would not serve any good purpose to set these accounts out here. Suffice it to say that the interest on these amounts compounded at six per cent would amount to $5,844.13. The account of the executor should be surcharged in that amount. In reaching that conclusion we are aware of the rule that is urged upon our attention that the trial court found the facts against the contentions of appellant, and that this court will not disturb a finding of fact where it is based on any substantial evidence. In the first place, the trial court did not find absolutely that there had been no commingling, and, in the second place, this court has examined the record carefully, and in view of the vagueness, ambiguity and contradictory statements of the executor with reference to the cash that is supposed to have been carried in a safety-deposit box, is not very well impressed with the story.
The next point argued by appellant has to do with the commissions collected and retained by the executor on loans and insurance sold to himself as executor. There is but little dispute as to this item. The trial court found that this amounted to $1,351.84. On the motion of the executor to modify these findings the trial court held that the overhead cost of doing this business should be deducted from the amount first found, and surcharged the accounts of the executor with the amount of only $443.85. Appellant contends that this was error and that the accounts should have been surcharged in the entire amount.
In this connection no one disputes the fact that the executor was not entitled to any commissions for anything he did for the estate. He must get any return to which he is entitled from the compensation allowed him by the probate court. Any expense to which the executor is put should have been claimed by him in probate court and supported by a voucher. This is provided by R. S. 22-909 and 22-913. No attempt was made by the executor to comply with these sections. The American Law Institute has dealt with this question, Restatement, Trusts, Tentative Draft No. 3, section 197, Comment (q), wherein it is said:
“The trustee ... is chargeable with a bonus or commission received by him in breach of trust for acts done in connection with the administration of the trust.”
This statement is amply supported by authorities.
In the case of Magruder v. Drury, 235 U. S. 106, the district court of the District of Columbia and the court of appeals of the District of Columbia held that an executor and trustee who was a partner in a firm that had sold loans to a trust estate was entitled to retain the commissions because they arose out of the loan business in which he was a partner and was not a profit of the estate. The supreme court of the United States did not agree with this. The court said in part:
“It is a well-settled rule that a trustee can make no profit out of his trust. The rule in such cases springs from his duty to protect the interests of the estate, and not to permit his personal interest to in anywise conflict with his duty in that respect. The intention is to provide against any possible selfish interest exercising an influence which can interfere with the faithful discharge of the duty which is owing in a fiduciary capacity. ‘It therefore prohibits a party from purchasing on his own account that which his duty or trust requires him to sell on account of another, and from purchasing on account of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests, when he is the seller or buyer on his own account, are directly conflicting with those of the person on whose account he buys or sells.’ Michoud v. Girod, 4 How. 503, 555.” (p. 119.)
We conclude, therefore, that the trial court erred in this respect, and that the accounts of the executor should be surcharged with the sum of $1,351.84 rather than only $443.85.
The next point argued by appellant has to do with some bonds Werner sold himself as executor. The facts of this matter are about as follows: Some time prior to June 15, 1929, F. C. Werner was interested with other persons in the acquisition of the Joplin-Pitts-burg Railroad Company. Werner and associates purchased the property out of receivership. The total investment, including working capital, was $127,500. Werner advanced $10,000 and for that $10,000 received $14,800 worth of bonds and $14,800 worth of stock of the new corporation. The property was acquired out of receiver ship in the spring of 1929. Sometime between March 15 and March 19, 1929, Werner, who then owned personally this $14,800 of bonds and $14,800 worth of stock of the Joplin-Pittsburg Railroad Company, sold to himself as executor $9,500 of these bonds at par. Ignoring the common stock received by Werner, these bonds only cost him $67.50 per $100, so that, by selling them to himself as executor, he realized a profit of $3,081.80. Some time later through a fortuitous transaction the company was able to pay part of these bonds off and $7,500 of them were taken up by the company at par, leaving $2,000 of them in the estate. The executor argues and the trial court held that because the estate received back $7,500 of the bonds that the entire transaction is cleared up except that the $2,000 of bonds should be delivered to him and his accounts should be surcharged with $2,000. The matter with which we are concerned, however, is the profit made by Werner in the first place. He made this profit by selling bonds which he owned personally, to himself as executor. This cannot be done for the reasons set out heretofore in this opinion. Here again the American Law Institute has given us a rule. In Restatement, Trusts, Tentative Draft No. 3, section 197, Comment “P,” it is said:
“If the trustee in breach of trust sells his individual property to himself as trustee, he is chargeable with any profit which he makes thereby.”
This rule is sustained by Magruder v. Drury, supra, and other cases. It is followed by this court. See Crowley v. Nixon, 132 Kan. 552, 296 Pac. 376, and cases there cited. This court has steadfastly refused to inquire as to whether the transactions were beneficial to the estate. If the executor or trustee makes a profit out of a transaction the entire transaction is void and the profit, if any, goes to the estate. (See Peoples B. & L. Ass’n v. Severns, 140 Kan. 148.)
We conclude, therefore, that the account of the executor should be surcharged with the amount of profit made by him out of the bond transaction, or $3,081.80.
The next point argued by appellant has to do with the compensation allowed the executor by the probate court. These allowances were approved by the trial court. Sufficient has been said already in this opinion to make it plain that this court concludes that Werner was a faithless trustee. As such, he is not entitled to any compensation.
In In re Simmons Estate, 136 Kan. 789, this court said:
“In Dryfoos v. Cullinan, 17 Kan. 452, the court had under consideration the question of whether an administrator who had been guilty of waste and unfaithful administration was entitled to compensation. The court held that he was not. It was said: ‘When a person is unfaithful to a trust confided in him, and compels the parties interested therein to resort to litigation to protect their rights, he forfeits his right to compensation for his services.’ (p. 454.)” (p.790.)
See, also, Lewis v. Ingram, 57 F. 2d 463.
The court should examine each account filed by the executor and surcharge the account of the executor with the amounts paid the executor as compensation from the time when he was first appointed. This is in accordance with the rule laid down in Shintaffer v. Bell, 134 Kan. 101, 4 P. 2d 764. There this court said:
“The executor stresses the annual settlements approved by the probate court. Annual settlements are not strictly settlements. They are ex parte exhibitions of accounts, without notice even by publication. When approved, they aro of prima facie correctness only, unless there is contest and actual adjudication. In this instance, from interest items and lists attached to the annual accounts, it was inferrable funds of the estate were fi-om time to time being converted into securities other than those contained in the inventory with which the executor was charged. Conceding but not deciding that approval of an annual account was prima fade an adjudication that the executor rvas entitled in balancing his account to credit for the new securities, the statute expressly provides that at any settlement of account all former accounts may be surcharged of items not actually disputed, allowed through error or mistake. (R. S. 22-915.) Ih this instance it was egregious error to allow the executor credit for worthless securities which he took under circumstances which made his conduct equivalent to bad faith.” (p. 106.)
The judgment of the trial court is reversed with directions to enter judgment for the appellants in accordance with the views herein expressed.
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The opinion of the court was delivered by
Burch, J.:
The action was one of quo warranto commenced by the state on relation of the attorney-general. The purpose was to correct an abuse of corporate power. A demurrer to the petition was sustained, and the state appeals.
The Kansas Life Insurance Company is a Kansas corporation operating under the law of this state. The petition alleged the company was not keeping its general offices for the transaction of its business within the state and was keeping the offices of its principal officers, and its books, records, accounts, funds, etc., in the state of Missouri, all in violation of law. The petition also alleged the misconduct was aided and abetted by a confederate, the Pyramid Life Insurance Company, a Missouri corporation. The demurrer was sustained on the ground the petition did not disclose that the method prescribed by the legislature for the correction of corporate delinquency was followed. (Insurance Code, R. S. 1931 Supp., ch. 40.)
By the insurance code a distinct department of government known as the insurance department was created, having a chief officer, known as the commissioner of insurance, who is charged with administration of all laws relating to insurance. This officer has general supervision, control and regulation of life insurance companies. Whenever it appears to him, by examination or by other satisfactory evidence, that any insurance company is conducting its business in violation of any law of the state, he shall, on reasonable notice, give the company a hearing, and shall do this before he files or makes public the report on which he acts. The statute continues as follows:
“If on such hearing the report be confirmed, he shall suspend the certificate of authority of such company until its solvency shall have been fully restored and the laws of the state fully complied with; and he may, if there is an unreasonable delay in restoring the solvency of such company and in complying with the law, revoke the certificate of authority of such company to do business in this state. Upon revoking any such certificate he may communicate the fact to the attorney-general, whose duty it shall be to commence and prosecute an action in the proper court to dissolve such company or to enjoin the same from doing or transacting business in this state.” (R. S. 1931 Supp. 40-222.)
As indicated, the commissioner may act on the report of an examiner or on “other satisfactory evidence.” This includes information imparted by the attorney-general, and such information should be treated as confidential until a hearing can be had.
The attorney-general contends he is a constitutional officer, is the chief law officer of the state, and has both statutory and common law powers; the civil code remedies of quo warranto and injunction are general in their application, and he is authorized to invoke them on behalf of the state; and if the insurance code were followed, he would be deprived of power.
The business of insurance is affected with a public interest and is subject to regulation by the legislature. For reasons founded on experience, and in the public interest, the legislature has given the insurance commissioner primary authority over corporate conduct. The subject is fully discussed in the opinion by Mr. Justice Dawson in Wright v. Federal Reserve Life Ins. Co., 131 Kan. 601, 293 Pac. 945.
The attorney-general says the question in the Wright case was one of private control as against public control of a life insurance company. The court cannot accept this statement. It is true the action was one by private parties acting pursuant to the civil code, but the fundamental question was not whether private parties may interfere with discharge of official duty by the insurance commissioner under the insurance code; the question was one of supremacy of the insurance commissioner. Parties, whether shareholders, or the state on relation of county attorney or attorney-general, can do no more than commence and prosecute an action to correct corporate misconduct. The court in which the action is commenced must order the correction. In the Wright case the court held the insurance code in legal effect placed an inhibition on the courts to supersede the insurance commissioner, in the absence of fraud, corruption, or other official dereliction on his part.
The count of the petition under consideration in this case is barren of any recognition by the attorney-general of existence of an insurance commissioner, and the demurrer to the petition was properly sustained.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This case involves an administrative appeal of two taxpayers from the assessed valuation of a certain oil leasehold interest in Greenwood County. The facts in the case are not greatly in dispute and were found by the district court to be in substance as follows: Appellees are the duly elected, qualified, and acting board of county commissioners and county board of equalization, county clerk, and county treasurer of Greenwood County. Appellants, Henry Martell and the Eureka Drilling Company, are the owners of the oil leasehold interest described in the equalization appeal as:
“Babson Lease, Section 9-25-11, Greenwood County, Kansas.”
On May 12, 1975, the county board of equalization heard appellants’ equalization appeal from the value fixed by the county assessor and made no change in that value. On July 14, 1975, an appeal from the decision of the county board of equalization was filed in the office of the county cleric of Greenwood County. On July 15, 1975, a copy of the appeal was received by the State Board of Tax Appeals as Docket No. 184-75-E. On November 14, 1975, the state board heard the equalization appeal. On December 15, 1975, the proceedings on the equalization appeal came on for final consideration and decision. The state board made and entered a specific order modifying the decision of the county board of equalization of Greenwood County, by reducing the 1975 appraised valuation of appellants’ Babson lease by 20%. The state board also made a general order which directed the appellees to reduce the 1975 appraised valuation on all other oil properties in Greenwood County by 20% and further directed the same reduction in eight other counties. The state board did not certify the purported change of valuation to the Director of Property Valuation in accordance with K.S.A. 79-1409. On January 14, 1976, the county officials appealed to the district court of Greenwood County, Kansas, pursuant to K.S.A. 74-2426.
In its judgment, the trial court sustained the specific order of the state board insofar as it granted specific relief to the taxpayers from the assessment made by the county board of equalization on the Babson lease. As to the general order granting relief to all oil property in Greenwood County and eight other counties, the district court held the order to be void. The taxpayers have appealed from the judgment setting aside the general order of the state board. The county officials have cross-appealed from the judgment sustaining the specific order of the state board. There are a number of points raised on the appeal and the cross-appeal. However, we are faced with a serious jurisdictional issue which is raised by the Greenwood County officials on their cross-appeal and which we have concluded is determinative of the lawsuit.
In its cross-appeal, the Greenwood County officials maintain that the State Board of Tax Appeals never had jurisdiction to grant the appellants any relief in the equalization appeal for the reason that the appeal was not timely filed with the state board as required by K.S.A. 79-1609 which requires that such appeals must be filed within forty-five (45) days from the date of the decision from which any such appeal is taken. K.S.A. 79-1609 provides in part as follows:
“79-1609. Appeals to state board of tax appeals; notice, requirements. Any person being aggrieved by any order of the county board of equalization may appeal to the board of tax appeals by filing a written notice of appeal . . . with the board of tax appeals and by filing a copy thereof with the clerk of said county board of equalization within forty-five (45) days after the date of the order from which the appeal is taken.”
K.S.A. 79-1409 provides for the same time limitation on appeals from a county board of equalization.
In this case, the record clearly shows that the order of the Greenwood County board of equalization, denying relief and upholding the evaluation fixed by the county assessor, was entered on May 12, 1975. On July 14, 1975, the appeal from the decision of the county board of equalization was filed by the appellants in the office of the county clerk of Greenwood County. On July 15, 1975, the appeal was received by the State Board of Tax Appeals and docketed. A period of sixty-three (63) days elapsed between the date of the decision of the county board of equalization and the filing of the written notice of appeal with the board of tax appeals and with the county clerk. The record further discloses that the county officials raised the jurisdictional issue in the State Board of Tax Appeals, in the Greenwood County district court, and again raised the issue here. It is difficult to understand how the state board or the district court could have concluded that the board of tax appeals had jurisdiction to grant any relief to the taxpayers. The law in this state is well settled that administrative appeals from taxing agencies are a matter of statute and the right to appeal is specifically limited to the statute providing for such appeals. In Sprague Oil Service v. Fadely, 189 Kan. 23, 367 P.2d 56 (1961), it is stated that there is no appeal from tax agencies in the absence of statutory provisions therefor and the right to appeal is limited to the statute providing for such appeals. In order for an appellant to maintain his right of appeal, he must bring himself clearly within the provisions of the statute which provide for such an appeal.
The State Board of Tax Appeals is a creature of the legislature. Its authority and power is only such as is expressly or impliedly given by legislative enactment. If it attempts to exercise jurisdic tion over a subject matter not conferred by the legislature, its orders with respect thereto are without authority of law and void. Walkemeyer v. Stevens County Oil & Gas Co., 205 Kan. 486, 470 P.2d 730 (1970); Republic Natural Gas Co. v. Axe, 197 Kan. 91, 96, 415 P.2d 406 (1966). The rule followed in Kansas is in accordance with the general rule applied throughout the United States that the time for taking an administrative appeal, as prescribed by statute, is jurisdictional and delay beyond the statutory time is fatal. 2 Am. Jur. 2d, Administrative Law § 544 and 73 C.J.S., Public Administrative Bodies and Procedure § 159. The general rule has been followed in Kansas in cases involving an administrative appeal in a worker’s compensation case, Shinkle v. Kansas State Highway Commission, 200 Kan. 191, 434 P.2d 836 (1967), and in an appeal under the unemployment compensation law, Smith v. Robertson, 155 Kan. 706, 128 P.2d 260 (1942).
Since the taxpayers-appellants in this case did not file a timely appeal with the State Board of Tax Appeals within the forty-five (45) days allowed by K.S.A. 79-1609, the state board had no jurisdiction to make any order in the appeal except to dismiss the appeal for want of jurisdiction. Likewise, the district court had no jurisdiction to make an order or enter judgment granting relief to the taxpayers. It necessarily follows that the specific order made by the Board of Tax Appeals and by the district court, granting relief to the taxpayers on the Babson lease, must be set aside and held void. No timely appeal having been taken from the decision of the board of equalization of Greenwood County, that decision, denying a change in the assessed valuation, remains in effect. As to the general order made by the state board, we decline to determine in this case whether that order was valid or invalid. We note from the record that the general order, covering the assessment of oil properties in Greenwood County and eight other counties, was made by the State Board of Tax Appeals in disposing of a number of pending appeals. Whether or not other appeals were timely taken is not shown in the record before us. We have no knowledge whether the general order has been challenged in other pending litigation in which the State Board of Tax Appeals properly had jurisdiction. We simply hold that we cannot determine the validity of the general order in this case on this appeal.
The judgment of the district court is reversed.
Fromme, J., not participating.
|
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The opinion of the court was delivered by
Hutchison, J.:
The one legal question presented for consideration in this appeal is that of former jeopardy. The error assigned by the defendant is in the sustaining of the demurrer of the state to the plea in abatement of the defendant alleging former acquittal of the same offense and containing a motion to discharge the defendant on that account. When the demurrer to the plea in abatement was sustained, the motion to discharge the defendant was overruled. The same question was again raised by the defendant just before the trial, some weeks later, upon a motion to discharge, and after the trial and conviction by a similar motion in connection with the motion for a new trial, both of which motions to discharge, as well as the motion for a new trial, were overruled.
The plea in abatement showed that an information had been filed in the district court of Kiowa county, a short time prior to the filing of this case in Ford county, charging this same defendant with apparently the same offense,, and that after the defendant waived arraignment and pleaded not guilty in the district court of Kiowa county and a jury was impaneled and sworn to try the cause in Kiowa county and the first witness had been duly sworn, the defendant objected to the introduction of evidence iii the case for the reason that the information failed to charge a public offense. The court sustained this objection and discharged the defendant. The plea in abatement further states that the court “did then and there discharge said jury from further consideration of said case without any sufficient or lawful reason therefor, and without the consent of said defendant.” To the plea in abatement in this, the Ford county case, was attached a copy of the information filed in Kiowa county, which was claimed by defendant to be insufficient because it failed to give the name of the owner of the property taken and a more definite description of such property than “certain goods, wares and merchandise of the value of more than twenty dollars.”
This objection of the defendant to the introduction of evidence in the Kiowa county case is very similar to that which is ordinarily made before the arraignment and plea as a motion to quash the information on the ground of insufficiency, or that it does not charge a public offense. The delay, however, in making the objection until after the jury is sworn to try the cause places the defendant in jeopardy unless some of the necessary elements of former jeopardy are lacking.
Appellant calls our attention to R. S. 60-2914, which enumerates the grounds for which a court may discharge a jury, as sickness of a juror, accident, calamity or necessity, consent of parties, or improbability of their agreeing, none of which reasons exist here. Appellant also cites in support of the existence of one of these reasons, and that such be stated in the journal entry, which was not done here, the cases of State v. Allen, 59 Kan. 758, 54 Pac. 1060, and State v. Reed, 53 Kan. 767, 37 Pac. 174. The. first of these cases had been fully tried upon its merits under a plea of not guilty, and it had been given to the jury for deliberation, and it was there held under the statute above cited that a discharge without a reason being assigned operates as an acquittal. The second case above cited was where a juror was sick, but because no- formal record was made of the reason for the discharge, notwithstanding there was an abundance of facts and circumstances to establish such a reason, this court, after a full discussion of the statute, declined to say there was no good reason for the discharge of the jury.
Appellant cites and urges strongly the case of State v. Stiff, the opinion being reported in 117 Kan. 243, 234 Pac. 700, and the opinion on rehearing being in 118 Kan. 208, 234 Pac. 704. In this case, before the defendant had pleaded not guilty, he had filed a motion to quash the information for the reason “that the information does not state facts sufficient to constitute a public offense under the laws of the state of Kansas.” The attention of the court was not called to any defects in the information. The motion to quash was denied, and the next day, after a jury had been impaneled and sworn to try the case, the county attorney asked to amend the information. The court denied this application, set aside the- order denying defendant’s motion to quash the information and sustained that motion, and also discharged the jury. The position of the court on appeal, and the grounds for its rulings, are set out in the syllabus of the first opinion, which are as follows and were adhered to in the rehearing:
“A person who is brought to trial on an information which, although de fective, sufficiently charges an offense to sustain a judgment on a verdict of guilty, is placed in jeopardy when the jury is sworn to try the cause; and, where the jury is afterward discharged for a reason other than one of those contained in section 60-2914 of the Revised Statutes, he cannot be again brought to trial for the same offense charged in another information.
“A defendant charged with a criminal offense cannot be said to have consented to the discharge of a jury without a verdict where, before pleading, his motion to quash the information had been denied and afterward a jury had been sworn to try the cause and was discharged before the introduction of evidence without the request of the defendant other than by his motion to quash the information.” (Syl. ¶¶ 1, 2.)
The facts on which this opinion was based are very different indeed from those in the case at bar. 'In the latter we have the defendant objecting to the introduction of evidence after having been put in jeopardy, and his attorney pointing out the insufficiencies of the information, which go far towards making it invalid and such as might not sufficiently charge an offense as to sustain a judgment on a verdict of guilty. We also have the trial court sustaining the defendant’s objection to the introduction of evidence, which of necessity disposes of the first case at the request and insistence of the defendant, instead of overruling the defendant’s motion to quash, as in the Stiff case, and later reversing that ruling without any request from the defendant.
The case of State v. Madden, 119 Kan. 263, 237 Pac. 663, cited in this connection, is also very different from the one at bar, it being an appeal from a conviction of a misdemeanor in justice of the peace court, and after the jury was sworn in the trial in the district court counsel for the state moved to dismiss the case, which was done. It was not the appeal that was dismissed, but it was the case itself that the court dismissed on the motion of the state.
Appellant cites authorities to the effect that mere silence of the defendant, or his failure to object or protest against the discharge of the jury, does not constitute a consent to such discharge of the jury or in any way waive his constitutional rights against being subjected to a second jeopardy. To this we fully agree, but we can readily see a distinction between such conduct and the active pressing of an objection the sustaining of which will produce the same result.
Reference is made in the briefs of both parties to the statute and the decisions thereunder where property is taken by larceny in one county and brought into another, as to the jurisdiction being in either, but no jurisdictional question is here involved, and we shall regard this as concerning one offense only.
In determining whether or not a former jeopardy existed in this case, we must first consider whether the information in the Kiowa county case was sufficient to sustain a conviction, and whether the sustaining of the objection made and urged by the defendant, which necessarily disposed of a jury trial, was with the consent of the defendant. The statutes of this state and the approved texts require that a statement of the facts constituting the offense of larceny be contained in the information, and R. S. 62-1007 carries this requirement to the name of the owner of property taken, and R. S. 62-1005 requires that the language of the information must be direct and ’ certain as regards the party and the offense charged. The Kiowa county information nowhere named the owner of the property taken, but named the railroad company as being in charge of the premises or depot from which it was taken. But this defect may not be enough to make the information insufficient, although defendant named it in his objections as such a defect. It was held in State v. Bartholomew, 116 Kan. 590, 227 Pac. 366, that—
“In an information charging larceny, the title to the property may be alleged to be in the person in whose possession it was when it was stolen, although the ownership may be in some other person.” (Syl. ¶ 1.)
In State v. Urban, 117 Kan. 130, 230 Pac. 77, it was held:
“In an information charging larceny the title to the property may be laid either in the owner or the person from whom the property was stolen.” (Syl. ¶ 2.)
And in State v. Pigg, 80 Kan. 481, 103 Pac. 121, it was stated:
“The actual status of the legal title to stolen property is no concern of the thief. . .” (Syl. ¶ 6.)
The information, however, is very much less direct, certain and concise with reference to the description of the property said to have been taken. It charges the taking of “certain goods, wares and merchandise of the value of more than twenty dollars.” The general rule seems to be that an article stolen should be described with such certainty as will enable the jury to decide whether the article proved to have been stolen is the very same as that charged in the information and show judicially to the court that it can be the subject matter of the offense charged and enable the defendant to plead his acquittal or conviction to a subsequent information relating to the same article.
In State v. Tilney, 38 Kan. 714, 17 Pac. 606, it was said:
“An information for larceny, where the, only description of the property stolen is ‘national bank notes, United States treasury notes, and United States silver certificates, money of the amount and value of one thousand dollars,’ without any allegation of the inability of the prosecutor to give a more specific description, is insufficient and will be held bad on an objection seasonably made.” (Syl.)
(See, also, State v. McAnulty, 26 Kan. 533; State v. Segermond, 40 Kan. 107, 19 Pac. 370; and State v. Mumford, 70 Kan. 858, 79 Pac. 669.)
These cases cited recognize and justify an excuse for failure to give a specific description of the property in the information, but no such excuse is found in the Kiowa county information.
In 36 C. J. 813 it is said:
“The character of the thing to which the charge relates must be set forth in the indictment with definiteness and certainty. It is not sufficient to describe the thing stolen merely as ‘a parcel,’ or as a ‘case of merchandise,’ or as ‘a certain lot of furniture,’ or as ‘certain paper,’ or ‘certain tools,’ or as ‘certain property of the United States furnished for the military service.’ ”
We must conclude that certain goods, wares and merchandise is not such a definite and certain description as will enable the juiy to decide upon a trial whether the proof furnished would establish the identity of the articles charged to have been taken, nor justify either court or jury in holding that the terms used referred only to smoking tobacco, cigarettes, towels or pecan nuts, as described in the Ford county information; neither is the indefiniteness and uncertainty excused in the Kiowa county information by any statement, which is tolerated and allowed in this and other states, to the effect that a more definite and specific description is unknown and cannot be given. We conclude that the description of the property charged in the Kiowa county information to have been taken was so indefinite as to render that information insufficient to charge the defendant with a public offense. This was the second ground of the defendant’s objection to the sufficiency of the Kiowa county information, and its being sustained by the trial court on the motion, at the instance and with the consent of the defendant, necessarily disposed of the entire case in the district court of Kiowa county, including the discharge of the jury; and because of this insufficiency of the information and the consent of the defendant to its being so held, it will not constitute a former jeopardy from which parties are protected by our constitution and statutes. R. S. 21-115 specifi cally excludes from former jeopardy instances where exceptions are made and allowed to the form or substance of the indictment or information. In 16 C. J. 241 it is stated:
“. . . Where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put defendant in jeopardy and bar another prosecution.”
Also, at page 259 it is stated:
“When accused in a criminal case makes a motion in arrest of judgment upon the ground that the indictment is defective, and this motion is sustained, he will not thereafter be heard to allege that the indictment was in fact good and that he was in jeopardy thereunder; and this is true without reference to whether the indictment was in fact good or bad in substance.”
The following is from 8 R. C. L. 152:
“It may be stated as a general rule that where an indictment is quashed at the instance of the defendant, though after jeopardy has attached, he cannot thereafter plead former jeopardy when placed on trial on another indictment for the same offense. His action in having the indictment quashed constitutes a waiver of his constitutional privilege."
In Bishop on Criminal Law, 9th ed., 759, it is said:
“Where, at any stage of the proceedings, the defendant procures the indictment to be quashed, he cannot in bar to a new trial assert that the first was good, and he was in jeopardy under it.”
See, also, to the same effect 2 Wharton’s Criminal Procedure, 10th ed., § 1444, and Kelley’s Criminal Law and Procedure, 4th ed., page 191, and 19 A. L. R. 623.
The elements of former jeopardy are stated in 16 C. J. 237, as follows:
“A defendant in a criminal prosecution is in legal jeopardy when he has been placed upon trial under the following conditions: (1) Upon a valid indictment or information; (2) before a court of competent jurisdiction; (3) after he has been arraigned; (4) after he has pleaded to the indictment or information; and (5) when a competent jury have been impaneled and sworn.”
Our court, in State v. Brick Co. et al., 117 Kan. 192, 230 Pac. 1035, emphasized the necessity of the information being sufficient to sustain a conviction and the discontinuance of the former trial being without the consent of the accused in order to constitute legal jeopardy, in the following language:
“An accused is in legal jeopardy when a trial is begun before a court of competent jurisdiction upon an indictment or information which is sufficient to sustain a conviction, and when jeopardy attaches the discontinuance of the trial without the consent of the accused or an absolute necessity is a bar to another prosecution for the same offense a second time.” (Syl. ¶ 1.)
Under these authorities the proceedings in the Kiowa county case did not constitute a former jeopardy, and there was no error in the district court of Ford county in so holding.
The judgment is affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by Frank R. Williams, Jr. from a jury conviction of aggravated robbery.
The facts and details of the crime are not at issue on appeal and can be summarized briefly as follows:
On December 16, 1977, at 1:10 P.M., the Household Finance Co., 8029 Peach Tree Lane, Wichita, Kansas, was robbed of $370.80 by two black males armed with guns. The victim, office manager Michael F. Duncan, identified the defendant from police photographs shown him shortly after the robbery. The defendant was arrested at his place of employment. After being advised of his rights, the defendant told the police he was forced by one Angelo Walker to accompany him to the Finance office, where Walker and a Jimmy Carroll committed the robbery.
Eric Bruce, a Wichita, Kansas, attorney, was appointed to defend Williams. Mr. Bruce represented the defendant, without apparent antagonism, through the preliminary hearing and argument on defendant’s motion to suppress. The case was set for trial on February 27, 1978, at which time defendant requested permission to appear pro se and applied for a continuance. Contemporaneously, Bruce requested permission to withdraw from the case.
The court granted appellant’s request to appear pro se with Bruce as co-counsel, denied the application for a continuance and denied Bruce’s request to withdraw. Williams and Bruce tried the case as co-counsel. Williams was convicted and brings this appeal.
Appellant argues four issues of error. He first contends his waiver of right to counsel was void as it was not knowingly and intelligently made and thus not voluntary.
Appellant concedes that he requested he be permitted to try the case pro se but argues his request was not knowingly and intelligently made in conformity with the standards enunciated in Faretta v. California, 422 U.S. 806, 835, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975), where the court stated:
“Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open’.”
See also State v. Cunningham, 222 Kan. 704, 706, 567 P.2d 879 (1977), where the court said:
“[T]he critical question does not pertain to the extent of defendant’s legal knowledge, but whether he has properly been made aware of the dangers and disadvantages of self-representation — -so that the record will establish that he understands what he is doing and has made his choice with his eyes open.”
In State v. Daniels, 2 Kan. App. 2d 603, 586 P.2d 50 (1978), the court was faced with a criminal defendant who had not been informed of his right to have counsel appointed for him. In addition to stating that a defendant must be informed of his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), the court stated that a “trial court must make more than a routine inquiry when a defendant attempts to waive the right to counsel. [Citation omitted.] A waiver is an intentional relinquishment of a known right, made with full awareness of the effect.” State v. Daniels, 2 Kan. App. 2d at 607. The Court of Appeals then offered guidelines for a trial court in determining whether a defendant has knowingly and intelligently waived his right to counsel. State v. Daniels, 2 Kan. App. 2d at 607-608:
“The ABA Standards Relating To the Function of the Trial Judge, [citation omitted], suggest the trial judge’s inquiry show that the defendant:
‘(i) has been clearly advised ... of his right to the assignment of counsel when he is so entitled;
‘(it) possesses the intelligence and capacity to appreciate the consequences of this decision; and
‘(in) comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case.’
“To that, we would suggest that the trial judge also inform the defendant (1) that defendant will be held to the same standards as a lawyer; (2) that the trial judge may not aid the defendant in his defense; and (3) that it is advisable to have a lawyer due to the specialized knowledge necessary to conduct a trial and the fact that a lawyer is trained in the law.”
Let us now turn to the case at hand and examine the evidence to see if it can be determined, in the light of the foregoing guidelines, whether Williams knowingly and intelligently waived his right to counsel. The following colloquy occurred between appellant and the trial judge:
“THE COURT: In the case of the State of Kansas versus Frank R. Williams, Jr., 77CR2759, the Court understands, Mr. Williams, you are in custody. For the record, you are Frank R. Williams, Jr.?
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: And that you are in custody?
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: And, for the record, let it be known that Nola Moore represents the State and Mr. Eric Bruce, Eric D. Bruce has been appointed to represent you as I understand from the docket call—
DEFENDANT WILLIAMS: Yes.
THE COURT: — that you wish to represent yourself pro se?
DEFENDANT WILLIAMS: Yes, Your Honor.
THE COURT: Do you know what that means?
DEFENDANT WILLIAMS: Yes, I know what it means.
THE COURT: Have you ever sat through a trial of a case?
DEFENDANT WILLIAMS: No, sir.
THE COURT: Do you know what I mean when I say that you must follow the rules of evidence, statutory, and that also the criminal procedure; do you understand that?
DEFENDANT WILLIAMS: Well, I understand that you do want me to follow the rules of the Court, yes, I do.
THE COURT: And that you wish to represent yourself pro se?
DEFENDANT WILLIAMS: Yes, Your Honor, and —
THE COURT: Tell me why you want to represent yourself pro se?
DEFENDANT WILLIAMS: I feel that, you know, I was — I was told some things by my attorney, you know, and about my chances in this case and I feel that it’s very negative of what he says about my chances and I felt that due to the fact that these things was said that, that if we did go to Court that it wouldn’t be followed through to the extreme the way I would like it to be followed.
MR. BRUCE: Your Honor, in light of Mr. Williams’ statements, I would like to reiterate my motion to withdraw as his counsel in this case on the record.
THE COURT: I’m going to reserve my opinion on that. Do you know what I mean by voir dire, Mr. Williams?
DEFENDANT WILLIAMS: No, I don’t, Your Honor.
THE COURT: Do you know what the Court means by admissible evidence?
DEFENDANT WILLIAMS: Admissible evidence? Yeah, that’s the evidence that can be used.
THE COURT: Do you know what the elements of this crime of which you are charged are?
DEFENDANT WILLIAMS: Yes, I do.
THE COURT': What are they?
DEFENDANT WILLIAMS: Minimum of five years, maximum of life.
THE COURT: It’s apparent to the Court, Mr. Williams, that you are not in a • position to represent yourself because of the questions that you have answered, that I have just very briefly given to you in this hearing back in chamber.
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: There are certain rules of evidence and procedure that must be followed in court and if you insist upon representing yourself pro se, I will do the best I can to have you follow those things. But, if you don’t know what they are, you are going to run into problems; do you realize that?
DEFENDANT WILLIAMS: Yes, Your Honor, I do.
THE COURT: You are going to run into serious problems. Have you ever selected a jury before or anything of that nature?
DEFENDANT WILLIAMS: No, I —
THE COURT: Would you like to have the assistance of Mr. Bruce during this trial?
DEFENDANT WILLIAMS: Yes, I would and, also, Your Honor —
THE COURT: Then, I will have him sit with you as counsel. From what you have told me, you stated that you don’t think he will fight as hard for you, is that correct?
DEFENDANT WILLIAMS: Yes, sir. I also, when I was at —
THE COURT: Do you wish to have me appoint him to sit there and assist you in this trial?
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: Then, the Court will overrule your motion and you will sit as co-counsel with Frank R. Williams, Jr., during the course of this trial and you will be the one that will represent yourself pro se. Anytime you need to know anything regarding the rules of evidence, a question, or something of this nature, legally, turn to Mr. Bruce and ask him; do you understand that?
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: You are doing this voluntarily on your own, that you want to represent yourself?
DEFENDANT WILLIAMS: Yes, yes I am, Your Honor. But, excuse me, If I say — but I feel that, you know, that the Judge Helsel that was — that I went to docket call in front of, due to the fact that I am representing myself, I felt'that I should have had some time to learn a little bit more about the law than what I did and instead, he just told me I have to go to trial today, and, you know, Arre o. Johnson (Phonetic), I was going to make a motion to be able to go to trial with, with my chance to be able to find out more about what I should do. Like you said, I didn’t ask the real questions properly, but if I had my head in some law books and something, maybe I could have.
THE COURT: Well, this Complaint or Information was filed on December 19, 1977.
DEFENDANT WILLIAMS: Yes, sir.
THE COURT: And there is a statute that prohibits us upon our own — upon your own motion, you could have more time. But, we have to see that these cases are tried within 90 days. So that’s the purpose of wanting you to go to trial immediately and to give you a speedy trial. So, the case must be moved along. We can’t wait until you go to law school and learn how to be a lawyer; you understand that?
DEFENDANT WILLIAMS: Well, I didn’t need that much time.
THE COURT: Well, okay. It’s up to you to decide whether you want Mr. Bruce, his full participation, or want him — I’m going to have him there advising you whether you want it or not because from the questions that I have asked you, I understand that you do not understand, fully, some of the procedural and evidentiary matters. So, I’m giving his services to you and let you do what you want to do in that regard. Do you understand, fully, what I’m doing?
DEFENDANT WILLIAMS: In other words, he is going to be there, not to represent me, but to give me advice, in other words.
THE COURT: At any time you want advice, that is correct.
DEFENDANT WILLIAMS: Okay, would he — but there is no way he could represent me?
THE COURT: You are representing yourself as you have stated you want to do.
DEFENDANT WILLIAMS: Okay, right.
THE COURT: Now, if you change your mind at any course during the trial, do not state so in front of the Jury, but let me know.
DEFENDANT WILLIAMS: Call a recess?
THE COURT: Through Counsel, so that —
DEFENDANT WILLIAMS: Okay.
THE COURT: — he can take over representing you because I found many times that they find that maybe they do want somebody to represent them. But, that’s up to you.
DEFENDANT WILLIAMS: Well, you know, I mean —
THE COURT: It’s your course that you are setting and it’s your prerogative to represent yourself, if you want to. But, I’m having Counsel there to advise you on your legal rights; do you understand that?
DEFENDANT WILLIAMS: Yes, sir.”
Obviously, the guidelines were not as carefully adhered to as one might desire, but it should be remembered State v. Daniels, 2 Kan. App. 2d 603, had not yet been decided on the date of the trial. Williams had gone through the preliminary hearing and an argument on a motion to suppress with Bruce as counsel. From that, he knew something of the function of a lawyer but when Bruce expressed pessimism as to the outcome of the trial appellant decided to act as his own counsel. The trial judge established by his inquiry that Williams wanted to try his own case; that he knew very little about a trial; no rules of evidence; nothing about voir dire; nothing about the elements of the crime; that the court wouldn’t help him; that he needed a lawyer; that he knew the range of punishment in case of conviction.
Though not a perfect inquiry it appears the trial court adequately advised appellant of the hazards and difficulties of a trial for him to knowingly, willingly and intelligently waive his right to trial counsel. This conclusion is confirmed by appellant’s statement after the trial when questioned by Mr. Bruce.
“MR. BRUCE: Frank, how do you feel about my representation of you in this case?
DEFENDANT WILLIAMS: I have no complaints of his — of his co-counseling in this case.
MR. BRUCE: Do you think I have done an adequate job?
DEFENDANT WILLIAMS: I feel that he has done an adequate job as my co-counsel.”
Appellant next contends he should have had substitute counsel appointed for him. The argument is without merit. Appellant did not request substitute counsel; he requested to represent himself. For the court to appoint counsel where not requested would fly in the face of Faretta v. California, 422 U.S. 806, where the court considered the question of whether a criminal defendant may have the assistance of counsel forced upon him or her by the state and concluded the state may not force such assistance upon defendant. The court said:
“[I]t is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a state may compel a defendant to accept a lawyer he does not want. The value of state-appointed counsel was not unappreciated by the Founders, yet the notion of compulsory counsel was utterly foreign to them.”
And to further fortify this position we note that after the discussion with the trial court, appellant accepted Eric Bruce as his co-counsel. This indicated there were no irreconcilable conflicts between attorney and client. The court had no reason to make further inquiry in light of the quoted reason appellant gave for wanting to represent himself. He stated Bruce had been pessimistic about his chances of winning the case and he, therefore, didn’t think he would try it to the “extreme” he desired. In Brown v. United States, 264 F.2d 363, 369 (D.C. Cir. 1959) (Burger, C.J., concurring in part) the court found, “Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism.”
The trial court had no authority to appoint substitute counsel in the absence of good cause being shown. (State v. Banks, 216 Kan. 390, 532 P.2d 1058 [1975]). Good cause was not shown by appellant.
Appellant next complains of the trial court’s refusal to sustain his motion for a continuance.
The motion for a continuance was made immediately following action on appellant’s motion to appear pro se. The trial date had been scheduled for some time. The jury panel was present and waiting. The trial judge appointed Eric Bruce co-counsel for Williams, sustained his motion to appear pro se then denied his motion for a continuance stating as a reason that the 90 day speedy trial time was about to run. The reason was wrong. Williams was arraigned on February 1, 1978, and-the trial date was February 27, 1978.
Not only was the statement concerning the 90 day requirement wrong but also the defendant-appellant was the applicant thereby waiving his right to a speedy trial. (K.S.A. 1978 Supp. 22-3402; State v. Powell, 215 Kan. 624, 527 P.2d 1063 [1974].)
It is well established law of Kansas that the granting of continuances lies within the sound discretion of the trial court. State v. Nelson, 223 Kan. 251, Syl. ¶ 1, 573 P.2d 602 (1977). And further, the action of the trial court will not be disturbed on appeal absent a showing of abuse of discretion.
The question raised is whether the use of the wrong reason by the trial court for denying appellant’s application for a continuance constitutes abuse of discretion. We think not. Admittedly, were the speedy trial mandate the sole reason for denying the application for a continuance, it would be abuse of discretion if the reason were incorrect. Such is not the case. The trial date had been set for some time; the jury panel was waiting in the jury room; the docket was crowded; the witnesses had been subpoenaed; the prosecution staff was present and ready for trial; appellant presented no evidence of abuse of discretion; and ap pellant accepted attorney Bruce as co-counsel eliminating his need of time for preparation. We find the trial court did not abuse its discretion in denying appellant’s application for a continuance.
Appellant next contends he was denied due process because he was denied access to legal material and lay assistance. Both of these contentions are without merit. Appellant had access to a library and legal material through his co-counsel, Eric Bruce. Bounds v. Smith, 430 U.S. 817, 828, 52 L.Ed.2d 72, 97 S.Ct. 1491 (1977), held:
“[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.”
The court complied with this admonition by the appointment of attorney Bruce as co-counsel.
Appellant relies on Johnson v. Avery, 393 U.S. 483, 21 L.Ed.2d 718, 89 S.Ct. 747 (1969), as authority for requesting lay assistance. The Supreme Court held that convicts clearly have the right to assistance from “jailhouse lawyers” in the preparation of writs of habeas corpus. In this case Williams didn’t need lay assistance, he had a lawyer as his assistant. The lay assistant provision is applicable as a substitute only where legal assistance is not available.
Judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal and a cross-appeal from a judgment increasing a condemnation award for the taking of certain lands to make a reservoir for a water supply for the city of Augusta.
Briefly the facts were these: The plaintiff owned a 160-acre farm about two miles north of Augusta, consisting partly of good agricultural bottom land and partly of upland suitable mostly for pasture and hay meadow. The farm buildings were somewhat poor and run down, probably because the owner had been in a sanatorium for some years and the premises had been occupied by successive tenants. A stream, Elm creek, fed by springs, flowed through the farm.
In 1930 the city of Augusta decided to make provision for a water supply. The inhabitants voted a bond issue of $130,000 for that purpose. Some 94.3 acres of plaintiff’s land were condemned as a part of the site for the reservoir; and a condemnation award of $4,234.50 for plaintiff’s land taken, and $660 as damages for the remainder of his farm not taken, was deposited with the city treasurer to satisfy the city’s liability therefor.
Plaintiff declined to accept this award, and appealed to the district court. On the issues joined the jury returned a verdict in favor of plaintiff, assessing his damages at $10,087. The special findings read:
"1. What was the most valuable use for which the 160-acre tract of Napoleon Miltimore was adapted, on October 20, 1930? A. For impounding water.
“2. What do you find to be the fair and reasonable market value, for the most valuable use to which it was adapted, of the 94.3 acres which was taken by the city of Augusta and included in the reservoir site, as of October 20. 1930? A. $9,430.
“3. What was the fair and reasonable market value of the 65.7 acres not taken as a part of the 160-acre tract on October 20, 1930, immediately before any part of said 160-acre tract had been appropriated for water-impounding purposes? A. $50 per acre.
“4. What was the fair and reasonable market value of the 65.7 acres of the Miltimore land remaining on October 20, 1930, and immediately after 94.3 acres had been appropriated by the city of Augusta? A. $40 per acre.
“5. How much do you allow Napoleon Miltimore as compensation for the 94.3 acres of land taken? A. $9,430.
“6. How much do you allow to Napoleon Miltimore as compensation, if anything, for depreciation of the 65.7 acres remaining? A. $657.”
Judgment was entered accordingly, and the city appeals. In computing the interest due on the principal amount the court excluded therefrom any allowance of interest on the $4,894.50 which the city had deposited with the city treasurer payable to plaintiff’s demand. From the latter ruling the plaintiff presents a cross-appeal.
Considering the questions raised by the appellant city, it is first contended that plaintiff’s appeal was never properly perfected, and in consequence the district court had no jurisdiction. The pertinent statute provides that any owner of lands aggrieved by the paucity of the condemnation award may appeal—
“By filing with the clerk of said court, within thirty days after the filing of the decision or award of said commissioners, written notice of appeal, and giving bond for the costs thereof, to be approved by said clerk.” (R. S. 26-205.)
In what respect plaintiff failed to conform to this statute in taking his appeal is not clear. Counsel for the city examine at some length certain statutes which formerly governed the exercise of eminent domain and appeals therefrom, and cite some decisions based thereon, but in the revision of 1923 the present statute (R. S. 26-101 et seq.) was enacted to supersede and unify a number of miscellaneous statutes dealing with this subject. (See Report of Commission to Revise The General Statutes, December, 1922, pp. 97-99, 277-278.) That there is yet much to be done to clarify and codify the law of eminent domain is apparent from the exhaustive treatment the subject has received in official issues of the Judicial Council Bulletin for October, 1932, December, 1932, and July, 1933. Be that as it may, the statute under which the appellant proceeded to condemn and appropriate plaintiff’s property was article 2 of chapter 26 of the Revised Statutes of 1923; and the procedural steps which plaintiff took to appeal from the- condemnation award were taken in literal conformity with section 5 .of that act. Counsel for appellant profess to be uncertain what court is meant where the statute, quoted in part above, says that the appeal must be filed with the clerk of said court. A perusal of earlier sections of the same statute makes it clear, we think, that it is the clerk of the district court of the county where the condemned' land was situated— the same district court whose presiding judge appointed the condemnation commissioners at the instance of the appellant city. If this were a more difficult question than it is, we would not hesitate to refer to the civil code (R. S. 60-3301), and to the broad supervisory powers over all official boards and tribunals vested in the district court (R. S. 20-301), to determine, by deduction, that the “court” mentioned in the statute governing appeals from condemnation awards was the district court, and that an appeal filed with the clerk of said court was filed with the only functionary who could make it effective. And since the statute does not prescribe the precise mode of service of notice of appeal it would seem that any mode of service which would fairly notify the city would answer the purpose, and personal service of such a notice upon the mayor of the city was sufficient. To the point that plaintiff did not file a certified transcript of the condemnation proceedings in the district court a sufficient answer is that this desideratum is not one of the statutory requisites to perfect the appeal. By analogy' — -in ordinary litigation — a simple paper with a caption of a case and reciting that the litigant defeated in the district court intends to and does appeal to the supreme court, served on his prevailing adversary, and timely filed in the district court, will perfect an appeal to the supreme court. (R. S. 60-3306.) In such cases the transcript of the proceedings can come along more leisurely. And so here. The fact that a transcript of the condemnation proceedings did not accompany the notice of appeal did not vitiate it.
Error is next urged on the admission of testimony touching the value of plaintiff’s land. Witnesses testified that its highest value inhered in its special fitness for use as a part of a reservoir site. It was conceded that it would not have been feasible to make a reservoir site of the 94.3 acres of plaintiff’s land to serve the city’s need without using other lands adjacent thereto; and appellant contends that because of this fact it was improper and erroneous to determine the value of the condemned land on evidence of its adaptability for impounding water. In support of this contention the city cites the case of McGovern v. New York, 229 U. S. 363, 57 L. Ed. 1228, where the landowner’s complaint was that in appraising the value of his land taken as part of a site for the Ashokan reservoir for the city of New York, the condemnation commissioners excluded from their consideration of values the evidence of the adaptability and availability of the property for reservoir purposes and evidence of its value as a reservoir site. When their case was before the appellate division of the New York supreme court, (Matter of Simmons) 130 App. Div. 350, (In re Simmons) 114 N. Y. Supp. 571, it was said:
“It is probably true that the¡ commissioners might properly have received evidence tending to show that the Ashokan reservoir site is the cheapest, best, and most available site for water-supply purposes and for furnishing water to the city of New York, but it was not error to exclude the testimony offered as those facts were stated in the petition, . . . The record shows that the commissioners understood that these facts were established, and that they went no further than to hold that the facts could not be considered in forming an opinion of the market value of the property, in the absence of any evidence showing that they had enhanced or affected its value, before it was appropriated by the city. . . . There is no shadow of evidence of any prior demand for the property as a reservoir site or of any customer who would give more for it for that purpose, or of any circumstance by which the value of the parcel in question, as! a part of the natural reservoir site, could be estimated or determined. In the absence of such evidence, it is plain that the appellant has received the benefit of everything which enhanced the value of his property, except the increase caused by the taking of it by the city.” (p. 574.)
When the case came before the United States supreme court for review it was said:
“Mr. Justice Holmes . . . The enhanced value of the land as part of the Ashokan reservoir depends on the whole land necessary being devoted to that use. There are said to have been hundreds of titles to different parcels of that land. If the parcels were not brought together by a taking under eminent domain, the chance of their being united by agreement or purchase in such a way as to be available well might be regarded as too remote and speculative to have any legitimate effect upon the valuation. . . . The plaintiff in error was entitled to be paid only for what was taken from him as the titles stood, and could not add to the value by the hypothetical possibility of a change unless that possibility was considerable enough to be a practical consideration and actually to influence prices.” (57 L. Ed. 1228, 1232.)
This New York case is distinguishable from the one at bar in two respects at least. In the New York case the condemned land was valueless for a reservoir site except in connection with hundreds of different parcels of land; and there was no evidence of its enhanced value as a reservoir site other than that created by the city’s necessity. In the case at bar the plaintiff’s land supplied nearly half the site, and not more than two or three adjacent parcels were included in the reservoir site; and there was evidence showing that different people had repeatedly tried to buy the farm or part of it for reservoir purposes. Furthermore, water conservation and storage of waters for live stock and for domestic purposes are matters which in recent years have increasingly engaged public and private attention in this state. Two or three other water-storage projects have been developed in Butler county at no great distance from plaintiff’s land in recent years. A witness for plaintiff testified:
“I am familiar with the Miltimore land. I am familiar with the general condition of the land, and the availability of sites for water-impounding purposes, located in the vicinity of Augusta, prior to October 20, 1930. I am familiar with the prices which were paid for similar lands in that vicinity.
“I am familiar with lands of similar character which had been theretofore utilized for water-impounding purposes, and with the watersheds existing in the vicinity of Augusta, which were unpolluted in 1930.
“After the Santa Fe lake was constructed, I know of no other supply in the vicinity of Augusta, in 1930, except Elm creek.”
Another witness testified:
“The dam work I have been interested in is principally in connection with country estates, for pleasure purposes, building of lakes on farms. Sometimes I build a lake myself and sell it. Sometimes I build a lake for them.
“In connection with the work, have had occasion to familiarize myself with lands and vicinities susceptible to the impounding of water. . . . Land that is suitable for water impounding, in connection with other lands, adjacent or by itself, has, and had in 1930, an additional value.
“Elm creek had some springs in it. Ano'ther thing is the drainage there. I would say from the standpoint of drainage area of this locality that the Miltimore land and adjacent land were adaptable for impounding water. . . .
“In my opinion the general character of the site upon which and of which the Miltimore land was a part is a very good lake site. In my judgment, based upon my general knowledge of the use for which real estate may be devoted, and based upon the testimony I have given, the most valuable use or purpose for which 94.3 acres of the Miltimore land could be adapted was for lake-site purposes. That would be true whether the lake was built or not.”
In New York v. Sage, 239 U. S. 57, 61, 60 L. Ed. 140, 146, which grew out of condemnation proceedings to provide a part of the site for the same Ashokan reservoir involved in the McGovern case, it was said:
“ . . . No doubt when this class of questions first arose it was said in a general way that adaptability to the purpose for which the land could be used most profitably was to be considered, and that is true. But it is to be considered only so far as the public would have considered it if the land had been offered for sale in the absence of the city’s exercise of the power of eminent domain. The fact that the most profitable use could be made only in connection with other land is not conclusive against its being taken into account, if the union of properties necessary is so practicable that the possibility would affect the market price. But what the owner is entitled to is the value of the property taken, and that means what it fairly may be believed that a purchaser in fair market conditions would have given for it in fact — not what a tribunal at a later date may think a purchaser would have been wise to give, nor a proportion of the advance due to its union with other lots. The city is not to be made to pay for any part of what it has added to the land by thus uniting it with other lots, if that union would not have been practicable or have been attempted except by the intervention of eminent domain. Any rise in value before the taking, not caused by the expectation of that event, is to be allowed, but we repeat, it must be a rise in what a purchaser might be expected to give.”
In the recent case of Olson v. United States, 292 U. S. 246, 54 S. Ct. 704, certain properties bordering on the Lake of the Woods in Minnesota had been subjected by the federal government to easements of flowage. The landowners, being dissatisfied with the condemnation awards, invoked certiorari. In discussing the landowners' right to just compensation and what should be considered in determining that matter, Mr. Justice Butler said:
“The sum required to be paid the owner does not depend upon the uses to which he has devoted his land, but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. (Mississippi & R. R. Boom Co. v. Patterson, 98 U. S. 403, 408, 25 L. Ed. 206; Clark’s Ferry Bridge Co. v. Public Service Commission, 291 U. S. 227, 54 S. Ct. 427, 78 L. Ed. 767 ; 2 Lewis, Eminent Domain, 3d ed., § 707, p. 1233; 1 Nichols, Eminent Domain, 2d ed; § 220, p. 671.) The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. Nor does the fact that it may be or is being acquired by eminent domain negative consideration of availability for use in the public service. (New York v. Sage, 239 U. S. 57, 61, 36 S. Ct. 25, 60 L. Ed. 143.) It is common knowledge that public-service corporations and others having that power frequently are actual or potential competitors not only for tracts held in single ownership, but also for rights of way, locations, sites, and other areas requiring the union of numerous parcels held by different owners. And, to the extent that probable demand by prospective purchasers or condemners affects market value, it is to be taken into account.” (78 L. Ed. 825, 829, 54 S. Ct. 708, 709.)
Later in the same opinion Mr. Justice Butler cited and quoted from the earlier instructive case of Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206, in which it was held that the peculiar adaptability of land to a public purpose should be taken into account in determining its value, the court (Mr. Justice Field) saying:
“We do not understand that all persons, except the plaintiff in error, were precluded from availing themselves of these lands for the construction of a boom, either on their own account or for general use.” (p. 408.)
And so here. The jury’s first special finding was that the most valuable use for which plaintiff’s farm was adapted was “for impounding water.” This finding cannot fairly be construed to mean that it was only adaptable for use as a part of a site for impounding of water for the city of Augusta, and the evidence adduced would not have justified a finding so limited.
Another error urged is based on the amount of the verdict. The city contends it was excessive. However, there was testimony that lands situated like plaintiff’s, suitable for reservoir sites, were worth from $125 to $250 per acre. The jury found its value to be $100 per acre. There was, in fact, testimony that the land taken was mostly good bottom land and suitable for alfalfa, and worth $100 per acre for agricultural purposes. It follows that the error based on an excessive verdict does not appear. (20 C. J. 1210.)
Turning next to the cross-appeal, the trial court did not allow interest on the total final award, $10,087,, but only on that part of it which was in excess of the sum deposited with the city treasurer, $4,894.50, pursuant to the award of the condemnation commissioners. Presumably this ruling was based on the fact that since the smaller sum was available to plaintiff by simply calling for it he was not entitled to interest thereon for the period it lay in the city treasury awaiting his demand. But suppose he had drawn the money as soon as it was available. What would have happened to his appeal? Any tyro in the law could tell him that such an act on his part would be tantamount to an unqualified acceptance of the award and thus utterly defeat his appeal. (Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750; Wilhite v. Judy, 137 Kan. 589, 21 P. 2d 317; Clothier v. Wallace, 137 Kan. 928, 22 P. 2d 462.) In Paulson v. McCormack, 133 Kan. 523, 526, 1 P. 2d 259, it was said:
“Time and again it has been held that anything that savors of acquiescence in a judgment cuts off the right of appellate review.” (p. 526.)
In view of this rule of law the sum of money on deposit with the city treasurer to pay the first condemnation award was as effectually held beyond the reach of plaintiff as if payment had been denied. We have had to consider cases like Reisner v. Union Depot & Rld. Co., 27 Kan. 382, and Lee v. Missouri Pac. Rld. Co., 134 Kan. 225, 5 P. 2d 1102, where the landowner was dissatisfied with the condemnation award allowed and deposited payable to his demand, and where, on appeal, the trial court and jury allowed him less than the condemnation award. Obviously in such cases the landowner was not entitled to interest; but just as obviously the rule of those cases should not be applied where the landowner has appealed and vindicated his right to a larger award. In Gulf Railroad Co. v. Owen, 8 Kan. 409, the landowner appealed from the condemnation award and eventually obtained a higher amount for his lands taken and damaged. This court held he was entitled to interest on the total amount of the final award, and said it “would have made no difference that the company had deposited the amount of the valuation and assessment with the treasurer of the county.” (p. 419.) In accord with this early case were W. & W. Rld. Co. v. Kuhn, 38 Kan. 104, 16 Pac. 75; Calkins v. Railroad Co., 102 Kan. 835, 172 Pac. 20; and Fleming v. Ellsworth County Comm’rs, 119 Kan. 598, 240 Pac. 591; and nothing this court has later said can fairly be construed to lessen its potency, although in Lee v. Missouri Pac. Rld. Co., at page 233, we noted the fact that the authorities on this subject are not all to one effect. It follows that interest on the full amount, $10,087, should have been allowed, and the cause will be remanded to the district court to modify its judgment in this respect; and when so modified it will be affirmed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
Djefendant appeals from a conviction on a charge of embezzlement, the assignments of error having to do with the trial court’s admitting in evidence a transcript of stenographic notes made by a stenographer at a meeting where defendant, in response to 'questions by the county attorney, answered as to his handling of the funds alleged to have been embezzled.
The record shows defendant had been in the employ of the Kansas Gas and Electric Company for about eight years, first as bookkeeper and later as cashier. During the period he was acting as cashier he had full access to the money paid by customers, and handled all the receipts issued for such payment. He so manipulated the receipts that he pocketed the cash, and from various accounts appropriated to his own use the approximate sum of $2,300. Discovery of his shortages was made when delinquency of a certain account was called to the attention of the chief clerk. On the evening of September 27, 1932, defendant and the chief clerk went to the home of the district manager, who went back to the office with them and there checked the accounts, whereupon defendant orally confessed to having stolen from the company approximately $2,300. Defendant voluntarily went to the police station and asked to be put in jail, but was told he was doing so of his own free will and could be released at any time. The next day the county attorney was notified, and he proceeded to question defendant, which questions and answers were taken down by a stenographer regularly employed in his office. At the trial the company’s chief clerk and its district manager testified with reference to being present when the defendant was questioned by the county attorney, although the record does not show they testified to what was said there. Each testified, however, to conversations with the defendant in which the defendant stated to each of them that he had appropriated moneys of the company which came into his possession. It is not necessary that such testimony be recited' here, further than to say that in a general way it covered the same matters inquired of by the county attorney. These two witnesses and another also testified with reference to the conversations when defendant was confined in the city jail prior to the time he was questioned by the county attorney. Thereafter the stenographer was sworn as a witness and testified as to his qualifications and employment, and that he was present when the county attorney questioned the defendant, and that he made stenographic notes of the exact conversation that took place. The notes were offered in evidence, and objection was made that they were immaterial. The witness then testified that he had made a true and correct transcript of the stenographic notes, and the transcript was offered in evidence, the defendant objecting that it was not the best evidence. The court admitted both the notes and the transcript, and thereafter the transcript was read to the jury. During the reading defendant objected because the transcript was not the best evidence and because “there is an attempt by the state to convict the defendant without confronting him with the witnesses against him.” No attempt was made, either on direct or cross-examination, to show the independent recollection of the witness as to what was said. Defendant complains of the admission in evidence of the transcript, claiming that the defendant did not sign the transcript, and it did not constitute the best evidence. No complaint is made as to the competency of the stenographer nor as to the accuracy or identity of the notes, nor that the notes were not correctly transcribed, the contention being that while the witness could have testified to his best recollection of what was said, and could have refreshed his recollection by reference to his notes, it was error to permit the transcript of the notes to be read. It appears from the record that the transcript itself was never exhibited to the jury nor in the jury’s possession, either during the course of the trial in the court room or while the jury deliberated, but was simply read from the witness stand and used during argument of the case.
It is not contended that any undue advantage was taken of the defendant, nor that a confession or admission cannot be procured as a result of questioning by proper officers, but that the proper method to have proved what was said was by having some person who was present detail his recollection of what questions were asked and answers given. The rule applicable to proof is quite the same as proof of former testimony (16 C. J. 716), and any person who heard it is competent to testify as to the substance of what he heard if he heard and understood all of it, and where stenographic notes were taken and transcribed, the transcript may be introduced or the person who made the notes or transcript may read therefrom, provided there is evidence of identity and correctness, but such evidence has been held not to be superior to the testimony of a witness who heard the testimony. (16 C. J. 759, 10 R. C. L. 972.) See, also, 2 Wigmore on Evidence, § 1330, wherein it is said in part:
“(2) The report of a stenographer is, of course, more trustworthy in the ordinary case than mere recollection; but, regard being had to the serious burden of searching for a preferred source of evidence and of showing it to be unavailable, the advantage to be gained by requiring a stenographic report to be used if available does not seem worth the inconvenience; and such an innovation is discouraged by the courts:”
It may be conceded that many texts and cases can be cited to the effect that an oral confession is to be proved by the testimony of some person who heard it made, and that such testimony is to be preferred to the use of a transcript made from stenographic notes of such confession. As we view the question, however, we take note of the fact that our statute provides for the stenographic reporting of civil and criminal trials in court, and that at many hearings before administrative boards and officers the entire record of the proceedings is so made, and that the transcripts are considered much more accurate than the recollection of some person present as to just what was said. Suppose in the instant case the record had been made with a sound-reproducing machine, such as is used in many offices, would the recollection of a person present be better evidence than the record made, or better than a written statement prepared from such record?
The question of admissibility of a stenographic record was discussed in the case of Wright v. Wright, 58 Kan. 525, 50 Pac. 444, wherein objection was made to the court stenographer reading from his typewritten transcript of notes taken at a former trial, when he stated he could not testify from memory. The typewritten translation was refused and error was alleged in such refusal. On appeal this court said:
“The rule of many of the older cases was that a witness might refresh his memory, as to forgotten matter about, which he was called upon to testify, by reference to a memorandum of the same made at the time or very soon thereafter; having done which, he might then testify; but in such case his testimony must be from memory and not, from the memorandum. The liberalizing tendency of the courts has now enlarged the rule so as to include cases where the witness is still unable to testify from memory, after an examination of the memorandum, but is able to identify such memorandum as made by himself, at or near the time of the transaction to which it relates, for the purpose of preserving a true account of it, and that he knows it to have been truly and correctly made. In such cases he may give the contents of the memorandum as his own evidence.” (p. 528.)
And further the court said:
“Can there be any doubt that the notes of an official court stenographer are memoranda which fall within the rule above quoted? We think not. That the testimony of witnesses and the speech of people generally can be faithfully— literally — recorded by persons skilled in the stenographic art is known to everybody. It is the almost universal habit of courts, under the authority of statutes, to employ such persons for this purpose. Their work is performed under the sanction of an oath, and provision is made in this state for the preservation of their notes for future reference and use. Were it possible to write the testimony of witnesses in long hand, as it is delivered by them, no question could be raised as to the right of a witness who had correctly recorded it to read to the jury, although all memory of it had passed from his mind. Does the fact that it was written in characters unintelligible to persons who have not familiarized themselves with shorthand systems of penmanship make any difference? If it does, the basis for the allowance of much expert testimony is in danger of being demolished. The stenographer in this case testified that he had correctly taken the testimony of the witness Wright; and the fact that he had no independent recollection of such testimony after reading his notes, does not preclude him from giving to the jury what he knew to have been correctly done at the time it was performed.” (p. 530.)
The above case has been cited with approval in Garden City v. Heller, 61 Kan. 767, 60 Pac. 1060; Railroad Co. v. Osborn, 64 Kan. 187, 67 Pac. 547; and State v. Gentry, 86 Kan. 534, 121 Pac. 352. In the last-cited case it was held that where the county attorney’s stenographer testified she had correctly taken down and transcribed testimony at a preliminary hearing, it was competent for her to read the transcript. “This was in effect testifying that she made a memorandum of Belknap’s testimony as he gave it, and from the memorandum was able to swear to what he had said.” (p. 535.)
In support of his contention defendant cites three Kansas cases. One is State v. Foulk, 57 Kan. 255, 45 Pac. 603, which holds:
“la all prosecutions the accused is entitled to be confronted with the witnesses against him and to meet them face to face; and testimony of a witness given upon a former trial, and which was written down by the court stenographer, cannot be read in evidence against the defendant except with his consent.” (Syl. ¶ 2.)
The case is not in point, for the reason that the testimony included in the transcript was that of the defendant himself and not of some absent witness. And see State v. Nelson, 68 Kan. 566, 75 Pac. 505, .where the Foulk case is discussed, and the rule therein stated is limited.
Another case relied on is State v. Baldwin, 36 Kan. 1, 15, 12 Pac. 318, where, for purposes of impeachment, a stenographer employed by defendant’s attorneys had made a stenographic report of the preliminary hearing, was called as a witness, and testified he had made a transcript and destroyed his notes. He was requested to refresh his recollection from the transcript. An objection to his testimony was sustained. It was said:
“The writing and memorandum are used, not as evidence, but. to aid the memory. . . . It is only when the memory needs assistance that resort may be had to these aids.” (p. 15.)
After making comment, from which the above is quoted, the court held that because of immateriality, the evidence was properly refused. The case was decided almost forty years ago. Since that time Wright v. Wright and State v. Gentry, supra, have been decided, and the force of the holding in the Baldwin case has been much lessened.
The other case relied on is State v. Hewes, 60 Kan. 765, 57 Pac. 959. The testimony objected to in that case was clearly hearsay, and what is said is not in point here.
We do not deem it necessary to analyze the cases from other jurisdictions cited by the defendant.
Complaint is made that after the transcript was offered in evidence it was read to the jury by the county attorney and not by the stenographer who made it. Its authenticity had been established by the testimony of the stenographer, it contained the questions asked by the county attorney and the responses of the defendant. We fail to see where it made any difference who read it aloud to the jury.
It must be remembered here that the matter of the confession in the county attorney’s office, the taking of notes by the county attorney’s stenographer, and the transcribing of them, and the introduction of the transcript all followed testimony of other oral confessions of which no complaint is made. Even though it be held that the method of showing what took place in the county attorney’s office “cut across lots,” yet there is a great lack of showing that the defendant was prejudiced. If there was any error, it was highly technical and did not affect the substantial rights of the defendant. (R. S. 62-1718.)
Another contention made is that the transcript was altered. It appears that at some time certain questions and answers were underscored. Why this was done does not appear. Possibly it was to permit a more ready reference to what were considered the important parts thereof. Had the transcript been exhibited to the jury, there might be some point to the contention, but as the jury never saw it, we fail to see where it prejudiced the defendant.
Complaint is also made because the court made an order clarifying the court’s finding on the motion for a new trial, by stating the above transcript was never at any time exhibited to the jury nor examined by it during its deliberations. Such a practice is not commended. It is not denied that the finding speaks the truth. The only effect is that it prevents the defendant from drawing a wrong inference from the instruction to “candidly consider the evidence,” etc., and this does not constitute error.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal by defendant-appellant Richard M. McCowan from conviction by a jury of one count of first degree murder. K.S.A. 21-3401. This is the second time this case has been before this court. The action was tried the first time in Saline County, on a change of venue from Wichita County, resulting in a conviction of first degree murder under the felony murder theory. State v. McCowan, 223 Kan. 329, 573 P.2d 1029 (1978), (McCowan J). In the prior action the complaint alleged both premeditated murder and felony murder with the underlying felony being an allegation of aggravated escape from custody (K.S.A. 21~3810[fo]). This court found the underlying felony to be improper and reversed and remanded the case.
In this action, which was tried in Reno County on a change of venue, the State filed an amended information again charging both premeditated murder and felony murder with the underlying felony being unlawful possession of a firearm. K.S.A. 21-4204(l)(fo). In McCowan I the trial court, at the end of the evidence, did not instruct the jury on the elements of premeditated murder and instructed solely on first degree murder under the felony murder theory. In the present case the trial court, prior to trial, ruled that the case would be tried solely under the theory of premeditated murder and not under the felony murder rule. Later the court instructed solely on premeditated first degree murder along with the lesser included offenses of second degree murder and voluntary manslaughter.
The following statement of the facts is taken from McCowan I:
“The appellant is a resident of Wichita County, Kansas. On December 15,1975, he pled guilty to a charge of unlawful possession of a firearm in violation of K.S.A. 21-4204(l)(h), a class D felony. On April 12,1976, he was placed on probation in connection with this crime. The appellant was then advised by James Robison, his probation officer, on April 21 of the terms of his probation and his parole schedule.
“On May 19, 1976, the appellant failed to keep his scheduled appointment with Mr. Robison. He testified he was in California with his wife visiting his sick mother-in-law. He stated he tried on at least three different occasions to contact Mr. Robison in order to tell him of his whereabouts.
“Thereafter on May 24, 1976, Mr. Robison issued a ‘pick-up and detain’ order pursuant to K.S.A. 22-3716 against the appellant for parole violations. The alleged violations were failure to keep a scheduled appointment and traveling outside a fifty-mile radius of Leoti, Kansas.
“Mr. Robison subsequently requested a cancellation of this detainer order on May 25, 1976, at approximately 3:43 p.m. In its place he requested a bench warrant be issued for apprehension of the appellant. During the interim between cancellation of the ‘pick-up and detain’ order and the issuance of the bench warrant, the death occurred.
“Carl A. Simons, chief of police of the Leoti, Kansas, Police Department, stopped the appellant approximately one and one-half miles north of the city limits of Leoti. The appellant was traveling with his four children who ranged in ages from several months to twelve years. Chief Simons, with his service revolver drawn, ordered the appellant from his car. At this time Chief Simons had not received any notice of the cancellation of the detainer order. He then arrested the appellant for violating the conditions of his parole, advised the appellant of his rights, and handcuffed the appellant behind his back.
“The appellant testified he was fearful for his own personal safety and his children were frightened. He stated Chief Simons struck him with a blunt object on the back of the head after being handcuffed.
“Apparently the appellant requested permission to return to his car to quiet his children and to reassure them, but Chief Simons refused the request. While Chief Simons was making a radio transmission from his patrol car, however, the appellant returned to his car. With the help of his oldest daughter he took a .357 Magnum revolver from the glove compartment. With the gun in his hands, which were still handcuffed behind his back, he returned to the patrol car to order Chief Simons to remove the handcuffs. A scuffle ensued and two shots fired by the appellant struck and killed Chief Simons instantly.
“The appellant instructed his twelve-year-old daughter to drive to a nearby farm building where he was able to sever the handcuff chain through the use of a grinding machine. He then drove to a friend’s home where he left his children and he proceeded to flee to the State of Colorado.
“Upon discovery of the deceased, Lloyd Neyer, the sheriff of Wichita County, issued a pick-up order for the appellant. He also ordered the appellant’s wife, Pam McCowan, be placed in custody at the sheriff’s office.
“Several hours later the appellant was arrested by Colorado authorities and advised of his rights. He waived extradition after Colorado officials told him his wife was being held by Kansas authorities.
“Agents from the Kansas Bureau of Investigation arrived in Eads, Colorado, on the morning of May 26, 1976. They had a warrant for the appellant’s arrest charging him with first degree murder under the felony murder provision of K.S.A. 21-3401. The underlying felony charged was aggravated escape from custody (K.S.A. 21-3810[b]). After being advised of his rights, the appellant was questioned by the agents. They returned to Kansas with the appellant in their custody later in the day.
“The agents did not proceed directly to the sheriff’s office in Wichita County. After a lengthy drive through northwestern Kansas, they placed the appellant in the custody of the sheriff in Scott County, Kansas. The following morning, approximately 34 hours after his original detainment in Colorado, the appellant was first brought before a judge. He was formally advised of his rights and counsel was appointed for him.” pp. 329-331.
The evidence in the present case was essentially the same as in McCowan I except the defendant did not take the witness stand in this case and offered no evidence. Therefore, there was no direct testimony from defendant about the shooting.
Appellant asserts eighteen points of error in his brief and presents thirteen arguments in support thereof. Many of the points overlap and the brief does not address them in the order set forth in the statement of points. The arguments are merely numbered one through thirteen and do not identify the point or points being covered in each argument. The State responds with an enumeration of seven points and supporting arguments but not in the order addressed by appellant and in some instances not responsive to the issues as propounded by appellant. In addition, neither brief is adequately keyed to what is a rather voluminous record. Consequently the briefs in many instances have been more frustrating than helpful to this court. However, we will attempt to address the numerous points in the order originally listed by appellant and will include such additional facts from the record as they become necessary.
1. “That the Trial Court erred in not dismissing the charges and ordering the release of the defendant after having heard evidence to the effect that the Uniform Extradition Act was not complied with by Kansas law officials.”
Appellant makes several arguments, the first being that his return to Kansas from Colorado was not effected in accordance with the Uniform Criminal Extradition Act, K.S.A. 22-2701 et seq. Appellant states that Colorado has adopted the uniform act and that the Kansas statutes he cites have identical counterparts in Colorado. We will assume this to be true. Appellant concedes he was advised of his rights under Miranda and as a fugitive from justice and he executed a waiver of such rights, although not before a judge as required by K.S.A. 22-2726. The statute also contains the following language:
“Provided, however, That nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state.”
In State v. Ulriksen, 210 Kan. 795, 504 P.2d 232 (1972), we said:
“It is established that the jurisdiction of a district court in Kansas to try a person fora criminal ofíense does not depend on how he came to be in the state. (State v. Wellman, 102 Kan. 503, 170 Pac. 1052; Stebens v. Hand, 182 Kan. 304, 320 P.2d 790; Converse v. Hand, 185 Kan. 112, 340 P.2d 874; Smith v. State, 196 Kan. 438, 411 P.2d 663; Thompson v. State, 197 Kan. 630, 419 P.2d 891; State v. Eaton, 199 Kan. 610, 433 P.2d 347; Yurk & Brady v. Brunk, 202 Kan. 755, 451 P.2d 230; and Bruffett v. State, 205 Kan. 863, 472 P.2d 206.)” p. 799.
Appellant also argues that he was under pressure and was coerced into returning to Kansas by reason of the fact that he was told by the officers that his wife had been taken into custody in Wichita County. Hence, he did not freely and voluntarily agree to his return to Kansas. We have examined the record and all of the arguments presented on this point and it appears that defendant, once placed in custody in Colorado, voluntarily agreed to return to Kansas without the necessity of any formal extradition proceedings. This he had the right to do.
2. “That the Trial Court erred in not suppressing certain evidence, oral and/or tangible, obtained from the defendant, directly or indirectly, when such evidence was obtained in such a manner that the defendant’s rights under the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States, provisions of Article I, Bill of Rights of the Constitution of the State of Kansas and K.S.A. 22-3215 were violated.”
During the.trip from Colorado to Kansas with the K.B.I. agents, defendant made certain admissions, statements and confessions incriminating himself and volunteered to lead the officers to the place where he had disposed of the victim’s gun. Having done so the agents recovered the gun. Defendant did not testify in the second case and no statements were offered or admitted in evidence. He again asserts he was under coercion due to his having been told his wife was taken into custody. The court found in a Jackson v. Denno hearing that defendant was properly advised of his rights under Miranda and that his statements and acts in assisting in the recovery of the gun were voluntary. The argument that the victim’s gun should not have been admitted in evidence as “fruit of the poisonous tree” and his other arguments on this point are without merit. State v. Jones, 218 Kan. 720, 545 P.2d 323 (1976); State v. Soverns, 215 Kan. 775, 529 P.2d 181 (1974).
3. “That the Trial Court erred in overruling defendant’s motion to dismiss for failure to present a prima facie case of first degree murder, said motion being made at the close of plaintiff’s case.”
The argument in support of this point appears to be found in appellant’s Argument No. 13 wherein he asserts there was insufficient evidence to establish premeditation. In support of this position appellant states in his brief “defendant first approached his daughter and asked that she assist him in obtaining his freedom, he requested that she hold the gun. He did not try to use the gun himself until no other option was available.” Defendant, after being placed under arrest and handcuffed, walked to his car while the victim was using his radio, enlisted the assistance of his daughter in getting his own weapon, returned to the police car and then shot the victim in the scuffle that ensued. Defendant’s actions in going to his car, attempting to coerce his daughter into holding the gun on Chief Simons, taking the gun himself and, upon returning to the police vehicle, shooting the victim could certainly meet the requirements of premeditation. There is no specific time element required to establish premeditation. A rational trier of the facts could find guilt (including premeditation) beyond a reasonable doubt. State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979). Appellant’s argument does not merit further comment by this court.
4. “That the Trial Court erred by failing to instruct the jury in the theory of self-defense.”
In State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977), we held:
“To warrant the giving of an instruction on self-defense, under K.S.A. 21-3211, an accused must have a belief that the force used by him against an aggressor is necessary to defend himself against such aggressor’s imminent use of unlawful force and there must be some evidence to support such belief.” Syl. ¶ 13.
Even though the victim was acting outside his jurisdiction and the arrest was unlawful there was no justification for the use of deadly force to avoid the unlawful arrest. In addition, the defendant had no way of knowing at the time whether the arrest was lawful or unlawful. See K.S.A. 21-3217. No error is shown under the facts in this case in not instructing on self-defense.
5. “That the Trial Court erred by overruling defendant’s motion for dismissal and motion for directed verdict made at the close of the prosecution’s and defense’s case.”
Defendant did not take the witness stand and put on no evidence after the State finished its case. Defendant at the end of the State’s evidence moved for dismissal and then for a judgment of acquittal. Both motions were overruled. The only argument in support of the motions was that there was insufficient evidence to prove a prima facie case and guilt beyond a reasonable doubt. The motions were totally without merit. No argument was made before this court on the insufficiency of the evidence and none is made in appellant’s brief except as has been previously set out under point 3. There is no merit to the point on appeal. State v. Voiles, 226 Kan. 469.
6. “That the jury’s judgment is contrary to the applicable law and evidence presented in this case.”
This point was neither argued nor briefed and appears to again assert the positions of appellant as set forth in points 3 and 5.
7. “That the Trial Court erred for failing to discharge defendant from all liability for prosecution of the charges filed in this case and by failing to discharge defendant from all liability for further prosecution in any subsequent case of any charges to be filed for failure to afford defendant a speedy trial.”
Appellant argues that he was not brought to trial within 90 days as required by K.S.A. 1978 Supp. 22-3402(1). The statute provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” (Emphasis added.)
The statute also provides that in the event of a reversal of a conviction by this court or the Court of Appeals the time begins to run as of the date of filing the mandate with the district court. In the instant case the mandate was filed February 17,1978, and trial was not commenced until December 11, 1978. However, defendant was not being held in jail during that period solely by reason of the charges in this case. Defendant was being held in custody by reason of prior sentences imposed by both the district court and the United States District Court for the District of Kansas.
“One who is in custody, serving one or more sentences, is not being held ‘solely’ by reason of a pending charge, and it is not required that trial on the pending charge be commenced within the 90-day period specified by the statute.” State v. Sanders, 224 Kan. 138, 140, 578 P.2d 702 (1978).
Appellant made no attempt to. preserve or assert his constitutional right to a speedy trial as provided in the Uniform Mandatory Disposition and Detainer Act, K.S.A. 22-4301 et seq.
In Brimer v. State, 195 Kan. 107, 402 P.2d 789 (1965), this court held:
“To obtain the right of a speedy public trial provided by section 10 of our Bill of Rights, as legislatively defined by the Uniform Mandatory Disposition of Detainers Act, it is incumbent upon the accused incarcerated in a penal institution of this state to comply with all provisions of the Act, including the preparation of his written request for disposition of detainer to be addressed to the court in which the indictment, information or complaint is then pending against him and to the county attorney charged with the duty of prosecuting it.” Syl. ¶ 2.
8. “That the Trial Court erred by allowing plaintiff to file an amended information in said case.”
Following the decision in McCowan I reversing appellant’s first conviction, the State sought and obtained permission to file an amended information. The amended information charged the defendant with first degree murder based both on premeditation and the felony murder rule. The underlying felony in the initial information was aggravated escape from custody (K.S.A. 21-3810[h]) and in the amended information this was changed to unlawful possession of a firearm (K.S.A. 21-4204[l][b]).
Appellant contends that as his first conviction was based upon the felony murder theory, that in the retrial of the case the State cannot amend the information to state a different underlying felony and further that he cannot be tried for premeditated murder. At the outset it should be pointed out that premeditated murder and felony murder are not separate or different offenses. The statute merely provides alternative methods of proving the deliberation and premeditation required for a conviction of first degree murder under K.S.A. 21-3401. The statute provides:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.” (Emphasis added.)
A prosecution under the felony murder rule merely changes the type of proof necessary to establish a violation of the statute. Proof that a homicide was committed in the perpetration of a felony is tantamount to premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree. State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974); State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972).
In State v. Osbum, 216 Kan. 638, 533 P.2d 1229 (1975), we held:
“A trial court may allow an amendment to an information in its discretion both as to form and substance after arraignment and plea and before commencement of the trial.” Syl. f 1.
“Permission granted by a trial court to amend an information after a plea of not guilty and before the jury has been sworn to try the case does not constitute reversible error in the absence of any reasonable contention or any showing that the interests of the defendant were thereby prejudiced.” Syl. ¶ 2.
“Generally following the granting of a new trial, the state is in the same position with regard to amendment of the information as though no trial had ever been had in the case.” Syl. ¶ 3.
In Osbum the defendant was originally convicted of the unlawful sale of heroin under K.S.A. 65-2502 (Corrick). State v. Osburn, 211 Kan. 248, 505 P.2d 742 (1973). Upon reversal of that conviction by this court the State sought and obtained permission to amend the information to charge merely possession of heroin, which is also covered by the same statute, as it was apparent the original charge of unlawful sale could not be proved. On appeal from the conviction in the second case, the defendant argued that the trial court erred in not quashing the second information as the charge of possession of heroin constituted a different crime than sale of heroin. We said:
“The defendant maintains that his substantial rights were violated because he was compelled to answer a new and additional crime when the district attorney was permitted to file the amended information. The defendant argues that the trial court erred because when the prosecutor found that the state could not convict the defendant of selling a narcotic drug because of the procuring agent defense, defendant was then charged with possession of a narcotic drug. We believe that the Kansas code of criminal procedure is not as restrictive on the right of the district attorney to amend an information as the defendant is contending. K.S.A. 22-3201(4) is patterned closely after Rule 7(e) of the Federal Rules of Criminal Procedure which provides:
‘(e) Amendment of Information. The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.’ In interpreting this rule the federal courts have held that since the prosecutor is free to make the charge, he should be equally free to change it, and the restrictive rules about amendment of an indictment have no application to an information and instead the information may be amended in either form or substance. Leave of court is required in order that the court may protect the defendant against any possibility of prejudice. (Wright, Federal Practice and Procedure, Vol. 1, § 128.)
“In permitting the state to amend an information the courts have been careful to protect the rights of the defendant so that his defense will not be prejudiced by the amendment. Permission granted by a trial court to amend an information after a plea of not guilty and before the jury has been sworn to try the case does not constitute reversible error in the absence of any reasonable contention or any showing that the interests of the defendant were thereby prejudiced (State v. Eye, supra [161 Kan. 69, 166 P.2d 572].) The fact that the defendant has been tried on the original information does not change the rule. We have held in a number of cases that after a new trial has been granted on the motion of a defendant in a criminal case, the attorney for the state, with the consent of the court, may enter a nolle prosequi without prejudice to a future prosecution, and thereafter the defendant may be put upon his trial and convicted upon a new information. The theory is that when a new trial is granted on the motion of the defendant in a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had. (State v. Hart, 33 Kan. 218, 6 Pac. 288; State v. Spendlove, 47 Kan. 160, 28 Pac. 994; State v. Chance, 82 Kan. 388, 108 Pac. 789; and State v. Bloomer, 197 Kan. 668, 421 P.2d 58.) Of course, where a defendant procures a new trial he can be tried at the new trial only on the count or counts for which he was found guilty at the former trial. He may not be retried on other counts where he was acquitted. (State v. McNaught, 36 Kan. 624, 14 Pac. 277.) Likewise, where the new trial is granted after conviction for an offense included in the crime originally charged, the subsequent prosecution is limited to the included crime for which the defendant was convicted. (K.S.A. 21-3108[5].) With these two exceptions following the granting of a new trial, the state is in the same position with regard to amendment of the information as though no trial had ever been had in the case.” 216 Kan. at 640-642.
In the case at bar, appellant was granted a new preliminary hearing and arraignment and was fully advised of the evidence which would be used against him. He was not charged with any new or different crime but with the same crime, first degree murder. The only change in the information was concerning one of the elements of proof that would be confronting the State; the nature of the underlying felony necessary if premeditation and deliberation were not proved. As it turned out the court ruled prior to trial that the case would not be tried under the felony murder rule but solely on the basis of premeditated murder. Under the circumstances no prejudice has been shown.
9. “That defendant was not afforded an impartial trial by an impartial judge.”
Appellant filed an affidavit for the disqualification of Judge Vance contending he could not receive a fair trial because Judge Vance had presided over the first trial. Upon the filing of the affidavit it was referred to the Hon. Harrison Smith, associate district judge, in accordance with K.S.A. 1978 Supp. 20-311d. Judge Smith ruled that Judge Vance was not disqualified to conduct the second trial. The procedures contained in the statutes and those set forth in Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972), were properly followed and the point is without merit.
10. “That the Trial Court erred by failing to order dismissal of the charges as directed by K.S.A. 22-3402(4).”
This is the same allegation and argument as covered in point number 7.
11. “That the Trial Court erred by refusing to provide counsel with proposed jury instructions as requested per defendant’s motion prior to trial.”
Appellant filed a motion seeking to obtain copies of the court’s instructions several weeks prior to trial. He contends that as the information contained allegations of both premeditated and felony murder he was entitled to the jury instructions in advance in order to formulate his defenses. Needless to say, no judge can formulate his instructions prior to hearing the evidence upon which the instructions must be based. However, the court did furnish stock instructions prior to trial and the court’s ruling that the case would be tried solely on the theory of premeditated murder eliminated any doubt the defense might have had about the issues he would be required to meet. No error is shown.
12. “That the Trial Court erred by not granting defendant’s motion for stay of proceedings and/or dismissal of charges based upon former jeopardy.”
At the outset we might comment that we do not intend to prolong this opinion with a lengthy dissertation on the law of former jeopardy. For those interested, Chief Judge Foth of the Court of Appeals has recently explored the subject in depth in a scholarly opinion in the case of In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979).
Appellant’s arguments in support of his claim of former jeopardy are twofold. He contends that by reason of his conviction in federal court of a gun law violation involving the samé gun used in the killing of Chief Simons, he cannot subsequently be convicted in this case or any other which might involve the admission in evidence and the use of the same firearm. Appellant’s reliance on K.S.A. 1978 Supp. 21-3108(2)(a) and (3)(a) is without merit. The only connection between the federal court conviction and the evidence in this case was the fact that the gun involved in the federal prosecution was the same gun used in the present homicide. The killing of Chief Simons and the circumstances surrounding it had nothing to do with the other conviction and evidence of the killing of Chief Simons was not necessary nor used in the federal action. Likewise the conviction and evidence in the federal court proceedings had no bearing upon the prosecution for first degree murder. The fact that the same gun was an instrumentality of both crimes does not bar the murder prosecution. This argument will be considered further under point 13 and lacks merit. See State v. Edgington, 223 Kan. 413, 573 P.2d 1059 (1978).
Appellant’s other argument is based upon the trial in McCowan I and has been covered to some extent under point 8. In the former trial appellant was charged with first degree murder in one count in an information containing allegations of premeditation and deliberation and also allegations under the felony murder theory. The court instructed the jury under the felony murder theory only. Appellant argues this was an implied acquittal of premeditated murder and that he could only be tried the second time under the felony murder theory. The present case was tried and sent to the jury solely on the basis of premeditated murder. Although the State’s motion to file an amended information to allege a different underlying felony was sustained, the court ruled the trial would be conducted and the jury instructed on the theory of premeditated murder only. While it would have been proper for the trial court to instruct in both trials on both theories of first degree murder under the information as drawn and the evidence adduced, the propriety of the failure to do so is not an issue before this court at this time. State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978). Appellant’s argument would be more persuasive if we were dealing with two different charges. He attempts to distinguish premeditated murder from felony murder and insists he was convicted of one and acquitted of the other in the first trial. As pointed out earlier in this opinion, appellant has been charged throughout the entire proceedings in both cases with just one offense, first degree murder under K.S.A. 21-3401. In McCowan I he was convicted of first degree murder. He was not acquitted of anything. In the present case, in a retrial sought and obtained by appellant, he again has been convicted of only one offense, first degree murder, and has not been acquitted of anything.
K.S.A. 1978 Supp. 21-3108 provides in pertinent part:
“(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless such prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began; or
(4) A prosecution is not barred under this section:
(c) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.”
K.S.A. 21-3401 defines the crime of murder in the first degree as the killing of a human being either “committed maliciously, willfully, deliberately and with premeditation” or “committed in the perpetration or attempt to perpetrate any felony.” The statute provides that premeditated and felony murder are two theories under which one can be convicted of the crime of first degree murder. State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974); State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972). It does not create two different offenses, merely two different theories for proving the same offense. See State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978); State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978).
In a discussion of statutory felony murder provisions, the authors of Am.Jur.2d state:
“These statutory provisions [felony-murder statutes], generally speaking, do not create any new offense, but merely modify the common-law rules with regard to the intent of the defendant or the punishment to be imposed, or both.” (Citing Ex Parte Dela, 25 Nev. 346,60 Pac. 217 [1900].) 40 Am. Jur. 2d, Homicide § 72, p. 365.
In Ex Parte Dela, the Nevada Supreme Court stated:
“It was not necessary at common law to even charge that murder was committed in the perpetration of another crime, and it was sufficient to charge it in the common form; and, upon proof that the crime was committed in the perpetration of another crime, such proof stood in lieu of the proof of malice aforethought.” p. 353.
In State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978), this court found that an information in the ordinary form charging premeditated murder was sufficient to uphold a conviction under the felony murder theory. The court stated:
“Our court has held an information in the ordinary form charging that a killing was done with malice aforethought, deliberation and premeditation is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a robbery or burglary. (State v. Turner, 193 Kan. 189, 392 P.2d 863 [1964].) Therefore, the fact that felony murder was not charged in the information does not preclude an instruction where evidence supports the instruction.” p. 566.
Appellant chooses to ignore the provisions of K.S.A. 21-3108(4)(c) hereinbefore set out. In State v. Dolack, 216 Kan. 622, 533 P.2d 1282 (1975), this court stated:
“Professor Raymond L. Spring, (Now Dean of the Washburn University School of Law), in an article reviewing the provisions of K.S.A. 21-3108, succinctly stated the effect of subsection (4)(c) as follows:
‘When the former conviction, by direct or collateral attack, is set aside, reversed, or vacated, the defendant cannot claim former jeopardy as to the crime of which he was convicted. Since he cannot subsequently be tried for a higher degree of the crime of which he has been convicted, it is difficult to conceive of a case in which such action would be taken except at the instance of the defendant. Where the action is taken at the defendant’s instance, he clearly waives his right to claim former jeopardy, even though the conviction may be reversed or set aside for reasons not urged by defendant. Under subsection 21-3108(4)(c), however, it would make no difference whether the defendant urged the setting aside of the conviction, because even if the conviction were set aside on the court’s own motion, former jeopardy would not bar retrial. The defendant can only benefit by such action.’ (Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L.J. 179, 191 [1970].)
“We approve of what was stated by Dean Spring.” pp. 632-633.
We are not unaware of the exceptions grafted upon the rule of 21-3108(4)(c) by such cases as Burks v. United States, 437 U.S. 1, 57 L.Ed.2d 1, 98 S.Ct. 2141 (1978), but do not find that they are applicable under the facts of this case and may be distinguished from the case at bar.
Appellant’s claim of former jeopardy is without merit.
13. “That the Trial Court erred by not granting defendant’s motion for an order removing from consideration (1) charges of first degree murder as charged to be in violation of K.S.A. 21-3401 per the Amended Information and Amended Bill of Particulars and (2) all issues as to the possession ownership, control or usage of the A Llama .357 magnum revolver, Serial No. S810840.”
Appellant’s argument relative to the second issue appears to be that any issue, question or evidence involving the .357 magnum revolver should have been excluded from the trial. Following the trial in McCowan I and prior to the reversal of that case by this court, the defendant pled guilty to certain federal firearms violations involving the murder weapon. He contends that since he had already pled guilty to unlawfully transporting a firearm in interstate commerce in violation of 18 U.S.C. § 922(a)(1), the interjection of issues as to the .357 magnum revolver constituted double jeopardy. The argument is without merit. The gun was shown to be the murder weapon and as such was relevant and properly admitted in evidence. The fact that the same gun constituted the basis for the guilty plea in federal court does not preclude its admission in evidence in this case. State v. Edging ton, 223 Kan. 413, 573 P.2d 1059 (1978). Appellant’s other contention under this point is repetitious and has been adequately covered in other portions of this opinion.
14. “That the Trial Court erred in denying the defendant’s motion limiting references to Carl A. Simons as a police officer before the jury or any perspective [sic] or substitute juror.”
Appellant appears to assert that it was error for the court not to make a preliminary ruling before trial that all reference to the victim being a police officer should be excluded. The victim’s actions which led to his unfortunate demise were all taken in what he thought was his capacity as a police officer even though he was outside his jurisdiction. The fact the victim was a police officer was relevant to the issues in this case and certainly there could be no logical showing or explanation of the events leading to the homicide without disclosing the fact the victim was a police officer. No error is shown in the court’s ruling.
15. “That the Trial Court erred in denying the defendant’s motion limiting statements relating to the A Llama .357 magnum revolver, Serial No. S810840 before perspective [sic] juror or substitute juror or a member of the jury.”
This point appears to be part and parcel of the argument made under point number 13. It lacks merit.
16. “That the Trial Court erred by allowing testimony of witnesses who were not attached to the amended information.”
Appellant contends that the trial court erred when it allowed the State to endorse names of the witnesses it planned to present at trial immediately prior to trial.
K.S.A. 1978 Supp. 22-3201(6) provides:
“The prosecuting attorney shall endorse the names of all witnesses known to said attorney upon the complaint, information and indictment at the time of filing the same. Said attorney may endorse thereon the names of other witnesses as may afterward become known to said attorney, at such times as the court may by rule or otherwise prescribe.”
It has been often held by this court that late endorsement of witnesses is a matter within the discretion of the trial court. See State v. Rogers, 217 Kan. 462, 465, 537 P.2d 222 (1975), and other cases collected in the annotations following K.S.A. 1978 Supp. 22-3201.
The argument by appellant is without merit especially when one considers the fact that the case had been tried before. The State’s witnesses were undoubtedly known to appellant long before the second trial began. No abuse of discretion is shown.
17. “That the Trial Court erred by informing counsel that evidence of the deceased’s turbulent nature was inadmissible and then reversing such ruling at such a late date so as to deny defendant the opportunity to subpoena witnesses.”
In McCowan I the trial court had ruled that it would not allow evidence of the “turbulent nature” of the deceased. Shortly before trial began in the present case, defense counsel inquired if he was going to be similarly restricted in this trial. The court ruled in his favor and indicated it would allow such evidence to be presented. Defendant presented no evidence of any kind at trial and rested after the State had completed its case. Appellant now argues that the ruling came too late to allow him to prepare such evidence. The proposed evidence might have had some bearing on the issues in this case if defendant had shown any evidence of a valid claim to self-defense. There was no such showing in this case. See generally State v. Mason, 208 Kan. 39, 490 P.2d 418 (1971); State v. Gray, 179 Kan. 133, 292 P.2d 698 (1956); State v. Long, 103 Kan. 302, 175 Pac. 145 (1918). Cf. Carrick v. McFadden, 216 Kan. 683, 533 P.2d 1249 (1975).
18. “That the Trial Court erred by allowing the testimony of defendant's prior crimes.''
Appellant next argues that the trial court erred in admitting evidence of prior crimes. He complains of the testimony of James Robison, appellant’s probation officer. In his testimony, Robison stated that appellant had been convicted in Wichita County of unlawful possession of a firearm in violation of K.S.A. 21-4204(l)(b). The testimony was relevant to show the circumstances surrounding the attempted arrest of the defendant for parole violation which led to the victim’s death.
“[E]vidence which is otherwise relevant in a criminal prosecution is not rendered inadmissible simply because it may show a crime other than that charged.” State v. Farris, 218 Kan. 136, 139, 542 P.2d 725 (1975).
We have carefully reviewed the record and considered all of appellant’s points and arguments and find them to be without merit.
The judgment of the trial court is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
Chester J. Words was convicted by a jury of two counts of kidnapping (K.S.A. 21-3420); two counts of aggravated robbery (K.S.A. 21-3427); attempted aggravated robbery (K.S.A. 21-3427 and K.S.A. 21-3301); and first degree felony murder (K.S.A. 21-3401).
The trial was lengthy and diverse claims of error are made. The basic facts will be set forth at this time and additional facts, where necessary, will be stated as the individual points are considered.
In November, 1975, or early December, 1975, the defendant escaped from a state mental hospital in Fulton, Missouri, where he had been committed for a competency evaluation by a Missouri court in connection with criminal charges. From Fulton he went to Kansas City. On December 15, 1975, he and his girlfriend, Karolyn Kaye Simmons, traveled to Wichita by bus where they took up abode with Simmons’ roommate, Patricia Ann Malcolm. On December 18, 1975, at approximately 8:00 p.m., while Simmons was absent from the Malcolm residence, but Ms. Malcolm was present, defendant telephoned for a taxicab. The cab was dispatched to an address near the Malcolm home. Defendant departed shortly after the call was made. Witnesses in the area reported hearing gunshots from inside the cab and seeing the cab careen down the street until it hit a fire hydrant. They saw a black male emerge from the vehicle and run down the street toward the Malcolm home. The cab driver, Nick Weber, was found dead inside the cab, having been shot four times-in the back and in the back of his head.
Defendant returned to the Malcolm home some thirty to thirty-five minutes after his departure and was out of breath. He hid his gun and asked Ms. Malcolm for a change of clothes. Defendant then told her he had tried to rob a cab driver and had shot him. He later told Simmons the same story, plus some additional details. Over the next few days police officers came to the Malcolm home several times looking for defendant, but were told by the women that he was not there. At such times defendant was hiding in the home.
On December 23, 1975, Terry Bennett and Eddie Bullock, driving separate automobiles, arrived at the Malcolm residence to retrieve a stereo tape Simmons had borrowed. Simmons asked them to drive her and a friend to Kansas City. When they refused defendant entered the room with a gun in his hand and ordered Bennett and Bullock to lie face down on the floor. The men were then robbed of a billfold, cash, and car keys. At gunpoint the men were then forced by defendant, with Simmons’ assistance, into the trunk of the Bennett automobile. With defendant driving Bennett’s car and Simmons driving Bullock’s car, the group started for Kansas City. After a short time Simmons parked the car she was driving and rode the rest of the way with defendant in Bennett’s car. When the four arrived in Kansas City, Bennett’s car was stopped, defendant ordered the two men out of the trunk and to start running, and he fired three or four shots to convince them to keep moving.
On January 3, 1976, officers executed a warrant for defendant’s arrest at his mother’s residence in Kansas City. Mrs. Words gave permission for officers to search the house and they found Simmons hiding under a bed and defendant hiding in a closet.
This is a companion case to State v. Simmons (unpublished opinion No. 48,665, decided November 5, 1977), wherein Simmons’ convictions on two counts of kidnapping and two counts of aggravated robbery were affirmed. Simmons was tried and convicted prior to defendant’s trial and she testified for the State herein. Defendant testified at trial and denied participation and involvement in any of the Crimes.
We turn now to the issues raised on appeal.
I. The trial court erred, as a matter of law, in permitting the State to introduce and show color slides of the body of Weber.
A number of photographs and slides were admitted into evidence. Defendant objects to three of the autopsy slides on the grounds their sole purpose was to inflame the passion and prejudice of the jury and that they had no probative value.
This issue has frequently been before this court. Photographs are not rendered inadmissible merely because they are shocking or gruesome if they are relevant and material to the matters at issue. The admission of photographs of a decedent is not error when they are relevant to matters at issue, such as the cause and manner of death, and as an aid in understanding a pathologist’s testimony. State v. Gutierrez, 225 Kan. 393, 590 P.2d 1063 (1979); State v. Shultz, 225 Kan. 135, 140, 587 P.2d 901 (1978); State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978); State v. Soles, 224 Kan. 698, 701, 585 P.2d 1032 (1978).
The State’s theory of the case was that the cab driver was in the driver’s seat when shot by defendant at close range from the back seat during an attempted robbery. The cause and manner of death were relevant and the slides were discussed by the pathologist in his testimony, although not shown to the jury until later in order to save the pathologist some time. The slides showed only the wounds inflicted by the victim’s assailant prior to any alteration by autopsy procedures. The point is without merit.
II. The trial court erred, as a matter of law, in denying defendant’s motion for discharge on Count 5, the attempted aggravated robbery of Weber; and
III. The trial court erred, as a matter of law, in denying defendant’s motion for discharge on Count 7, the felony murder of Weber.
Count 5 of the information states:
“[Ojn or about the 18th day of December, A.D., 1975, one CHESTER J. WORDS did then and there unlawfully, wilfully toward the perpetration of the crime of Aggravated Robbery as defined by K.S.A. 21-3427, commit the following overt act, to-wit: ordered a cab to 2256 N. Minneapolis, Wichita, Sedgwick County, Kansas, and demanded the cab driver to stop the car, in order to rob the driver, and then shot the cab driver four times with a .22 caliber revolver, and the said CHESTER J. WORDS, with the intention to commit said crime, failed in the perpetration thereof;”
These allegations are supported by the testimony of both Simmons and Ms. Malcolm. The latter testified that: (1) Defendant asked her to look up the telephone number of the cab company; (2) defendant called the number twice (the first time he became confused on directions); and (3) defendant left the house shortly thereafter and returned thirty to thirty-five minutes later. She testified as to defendant’s statements to her upon his return as follows:
“Q. Would you describe for me and for the Jury exactly how that conversation took place as near as you can recall the exact words that were spoken?
“A. Well, he runs back into the house and I asked him what is wrong and he said, ‘I had to shoot and kill a cab driver.’ And then he asked did I have a place where he could hide; I told him no.
“Q. Did he describe how he shot the cab driver or why he shot the cab driver?
“A. He told me that he told the cab driver to give him the money and he said the cab driver asked him did he want a wreck, and the cab driver started going, speeded up and that he shot him, and he tries to jump out of the car and that his coat got caught in the car.”
Simmons testified to similar statements defendant made to her after his statements to Ms. Malcolm.
In a criminal case, the issue on appeal is not whether the evidence established guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the State. State v. Moody, 223 Kan. 699, 704, 576 P.2d 637, cert. denied 439 U.S. 894 (1978); State v. Childers, 222 Kan. 32, Syl. ¶ 1, 563 P.2d 999 (1977).
Aggravated robbery is defined by K.S.A. 21-3427 as follows:
“Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.”
The relevant portion of the attempt statute (K.S.A. 21-3301) is as follows:
“(1) An attempt is- any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
Clearly, there was sufficient evidence to form a reasonable inference of guilt of attempted aggravated robbery.
Defendant next argues that by virtue of the fact there was insufficient evidence of the underlying felony (attempted aggravated robbery), Count 7 (felony murder) was not supported by sufficient evidence. We have already determined there was sufficient evidence to support the conviction of attempted aggravated robbery, which controls this issue. The trial court did not err in denying defendant’s motions for discharge as to Counts 5 and 7.
IV. The trial court erred, as a matter of law, in refusing to instruct on second-degree murder and voluntary manslaughter as lesser included offenses of felony murder (Count 7).
Ordinarily, in a felony murder case where the evidence of the commission of the underlying felony is clear and uncontroverted, no instruction on lesser degrees of homicide should be given. State v. Goodseal, 220 Kan. 487, 553 P.2d 279 (1976); State v. Masqua, 210 Kan. 419, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973). Instructions on lesser degrees of homicide are required only in those cases where evidence of the commission of the underlying felony is weak, disputed, and unclear. State v. Bradford, 219 Kan. 336, 548 P.2d 812 (1976).
On separate occasions, shortly after the homicide, defendant told two persons he had killed the victim in the course of an attempted robbery, with details of how the killing had occurred. At trial defendant denied any involvement in the crime. Defendant’s statements to. the two persons were consistent with each other and with other evidence in the case. The jury could choose to believe that defendant’s prior statements were correct, as testified to by Ms. Malcolm and Simmons, or that defendant was not involved in the homicide. Accordingly, the jury could find defendant guilty of felony murder or innocent. No error is shown in refusing to instruct on the lesser degrees of homicide.
V. The trial court erred in not granting defendant’s motion for instructions as to lesser included offenses on Counts 1 and 2 (kidnapping).
There was no request for instructions on lesser included offenses in the two kidnapping counts (1 and 2), and the issue is not briefed on appeal. The point is deemed abandoned.
VI. The trial court erred, as a matter of law, in denying defendant’s motion for discharge on Counts 1 and 2, the kidnapping of Bullock and Bennett.
Defendant was charged in Counts 1 and 2 with taking and confining Bullock and Bennett with intent to hold “to facilitate the flight and to facilitate the commission of the crime of Aggravated Robbery, and to terrorize the victim.” Defendant con tends the confinement and transportation of Bullock and Bennett was not shown by the evidence to facilitate the commission of the crime of aggravated robbery, or substantially lessen the risk of detection.
Defendant and the State rely on State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), as the applicable law:
“We therefore hold that if a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
The two victims were made to lie on the floor at gunpoint in a house in Wichita. They were then robbed. Subsequently, they were forced, again at gunpoint, to get into the trunk of a car into which they were locked and driven to Kansas City. Upon their arrival in Kansas City they were let out of the trunk by defendant (the individual with the gun at all earlier events), and were told to leave. Defendant then fired several shots to hasten their departure.
The transportation of the victims was not slight, inconsequential or merely incidental to the aggravated robberies; was not of a kind inherent to aggravated robbery; and substantially lessened the risk of detection. In addition to lessening the risk of detection of the aggravated robberies, there was evidence that defendant told Simmons he needed to get away from Wichita because of the murder and that he wanted to “take the next car that came through.” There was also evidence that the police had been seeking defendant in the home in which he was hiding (and in which the robberies occurred) in connection with the murder.
This point is held to be without merit.
VII. The trial court erred, as a matter of law, in submitting to the jury Instruction No. 10 on aiding and abetting, there being no evidence to support said instruction.
The trial court gave the following instruction:
“NO. 10
“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.
“You are, therefore, instructed in this case that if you find beyond a reasonable doubt that the defendant knowingly counseled, aided, abetted, advised or procured another in the commission of the crime or crimes charged in the information, as elsewhere defined in these instructions, then he, individually, is guilty of such crimes as though he, by himself, without assistance, committed those crimes.
“A person who is guilty under the principle of law set forth in this instruction is also criminally responsible 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.”
K.S.A. 21-3205(1) provides:
“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.”
Defendant contends there was no evidence that he aided or abetted anyone as Simmons testified that her involvement in the aggravated robberies and kidnappings was the result of compulsion. This proposition might have some merit except for certain other factors present in the case. The victims’ testimony does not corroborate this position and the evidence before the jury showed Simmons had previously been convicted of these crimes. Simmons’ involvement was extensive and was under circumstances when she had opportunities to disassociate herself therefrom. The jury could conclude that she was an active and voluntary participant, as the jury in her own case had done. Under the totality of the circumstances the instruction was proper.
VIII. The trial court erred, as a matter of law, in submitting to the jury Instruction No. 11, concerning defendant’s stay in Fulton State Mental Hospital; and
IX. The trial court erred, as a matter of law, in prohibiting defendant’s counsel from stating the reasons why defendant left Fulton State Mental Hospital.
The trial court gave the following instruction:
“NO. 11
“You are instructed that while the law of the State of Kansas provides that insanity may be a defense to a criminal charge, there is no evidence in this case of such insanity on the part of the defendant.
“You are further instructed that confinement in a mental institution is not evidence of insanity which would constitute a defense to the charges in this case, and the sanity of the defendant is not to be considered by yourselves in arriving at a verdict.”
Prior to the commencement of trial, defendant filed a notice of intent to rely on an insanity defense. This was apparently abandoned during the trial. Defendant testified at great length, however, as to his stay at the mental hospital in Fulton, Missouri, where he had been confined under court order. This hospitalization continued until defendant escaped therefrom, said escape occurring shortly before the crimes herein. Defendant also referred to prior psychiatric hospitalizations. He apparently was anxious to convey to the jury what he considered to be inhumane and poor treatment he received at the hospital. This line of testimony presumably was aimed at showing good cause for leaving the facility and equally good cause to avoid return to the facility. Much of his testimony rambled and lacked direction. The jury could well have concluded defendant was suffering from some type of psychiatric problem.
Under the unique circumstances of the case, the instruction was not error. It served to clarify to the jury the law of Kansas as it applied to the sanity of the defendant in this particular case. Without the instruction the jury could very well have been confused as to how the evidence of defendant’s psychiatric hospitalization should be considered.
The other issue relating to the hospitalization was the propriety of the trial court’s refusal to allow defense counsel to state the reasons defendant left the hospital. Defense counsel complains that this restricted defendant’s theory of the case as it provided a reason for his hiding out in Wichita and his interest in evading the police, which was separate and apart from the State’s position that such efforts were to avoid apprehension for the crimes herein. The court specifically permitted argument on the fact defendant, as a result of the hospital escape, was a fugitive and did not want to return to the hospital. No error is shown in so limiting the closing argument of defense counsel.
X. The trial court erred, as a matter of law, in sentencing defendant under the Habitual Criminal Statute.
Defendant does not challenge the validity of the Habitual Criminal Act (K.S.A. 21-4504), nor does he challenge the adequacy of the evidence of the prior conviction. Defendant contends the court acted vindictively and arbitrarily by enhancing the sentence.
For support of this contention, defendant relies on various comments during the trial in which the trial court expressed concern with the slow pace of the defense and that the defendant, rather than his attorney, appeared to be “running this case.” No statements of which defendant was complaining occurred at sentencing.
It is necessary the complaining party show vindictive or retaliatory motives, or that judicial discretion was abused to obviate the penalty imposed. See State v. Eaton, 213 Kan. 86, 89, 515 P.2d 807 (1973). This court will not disturb a sentence imposed by a trial court on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive. State v. Bradley, 215 Kan. 642, 648, 527 P.2d 988 (1974); State v. Bradley, 130 Kan. 759, 761, 288 Pac. 735 (1930).
All sentences were to run consecutively. In the aggregate, defendant was sentenced to 122 years to life on Counts 1-5 and to life on Count 7. (Count 6 was a first degree premeditated murder charge for the death of Nick Weber who was the victim in Count 7, the felony murder charge. Count 6 was dismissed.)
We have carefully reviewed the record and there is no evidence indicating defendant’s sentencing was the product of any vindictive or retaliatory motive or that the trial court abused its discretion.
All points raised have been considered and found to be without merit, whether or not specifically set forth herein.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This action was begun to cancel a deed which the defendant, Mary A. Crawford, had executed to her three sons, and which purported to convey to them certain lands in Trego county to which plaintiff claimed title under a sheriff’s deed issued to it pursuant to the sale of those lands in foreclosure.
By consent of the litigants the action was resolved into one in ejectment. Mary A. Crawford disclaimed, and at the conclusion of the evidence, on motion of plaintiff, the jury was directed to render a verdict in favor of plaintiff.
The defendants other than Mary A. Crawford appeal, assigning certain errors, the first of which pertains to the overruling of their motion for a continuance on the ground that one of their attorneys had business in the probate court of a neighboring county when this case was called for trial. ,
It has long been settled law that the granting or refusing of a continuance is a matter committed largely to the discretion of the trial court (Davis v. Wilson, 11 Kan. 74, syl. ¶ 3). Unless abuse of such discretion is made to appear, no reversible error can be predicated on the trial court’s ruling on this matter. Certainly the absence of an attorney does not necessarily require that a continuance be granted when associate counsel competent to represent the party seeking the continuance is in attendance. (State v. Sweet, 101 Kan. 746, 752, 198 Pac. 1112; Berry v. Dewey, 102 Kan. 593, 172 Pac. 27.) In this case it does not appear that the absence of one of defendants’ attorneys prejudiced them in the slightest degree.
The second and third assignments of error relate to the instructed verdict and the overruling of the motion for a new trial. But counsel for the appellee raise the point that these assignments are not open to review because no transcript of the record was prepared as the code provides, and, in consequence, the abstract is incomplete. This point seems to be insurmountable. Counsel for appellants say that their partial record shows that they adduced sufficient evidence to require the cause to be submitted to the jury no matter how potent and convincing the evidence which may have been adduced to the contrary. But without the whole record being available for appellate review this court cannot assuredly determine the propriety of the trial court’s rulings. As a general rule any so-called “trial error” is not reviewable without a complete transcript of the record, and an abstract based thereon, which will fairly reflect the entire situation as it appeared to the trial court when it made the ruling complaine'd of. In respect to an incomplete record it sometimes happens that the rival litigants agree on the question of law or of fact on which the ruling was made, and thus the record prepared for this court can be greatly shortened. But here the briefs of counsel make it clear that they disagree on such simple matters of fact as the one whether a deed of conveyance from Mary A. Crawford to the plaintiff bank was offered in evidence. This sort of situation in appellate practice has been covered by many prior decisions of this court.
In Wyckoff v. Brown, 135 Kan. 467, 11 P. 2d 718, 720, it was said:
“Where appellee objects to the sufficiency of a record whose accuracy is dependent on the recollection of appellant’s counsel of what transpired at the trial, a record so limited will not permit an unrestricted appellate review.” (Syl. ¶ 1.)
In the opinion it was said:
“It is a matter of familiar appellate procedure that a litigant who is dissatisfied with the disposition of a cause in the trial court must see that such a record is made as will enable this court to review the errors of which he complains. There are certain approved methods of shortening a record for appellate review (Seigle v. Soldiers’ Compensation Board, 119 Kan. 253, 254, 237 Pac. 657, and citations; Richards v. Kansas Electric Power Co., 126 Kan. 521, 526, 268 Pac. 847, and citations). But a record which is founded on what appellant’s counsel remembers of the trial court’s proceedings will not answer the purpose, especially when the appellee objects to its sufficiency. (Holderman v. Hood, 78 Kan. 46, syl. ¶ 1, 96 Pac. 71; Buckwalter v. Henrion, 111 Kan. 781, 208 Pac. 645; Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419.)” (p. 468.)
The court holds that the record in this case is insufficient to present for appellate review the second and third assignments of error, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Dawson, J.:
Eor reasons which appeared sufficient, a rehearing of this appeal was allowed; and after further argument on behalf of appellee the court remains satisfied with its judgment of reversal, and that judgment is adhered to accordingly.
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The opinion of the court was delivered by
Smith, J.:
These were two actions in ejectment. The appeal is from an order overruling a motion to dismiss and a plea in abatement.
The facts are simple. The actions arose out of the estate of»Margaret Schindler, who died intestate on March 15, 1930. She left an estate consisting of real estate valued at about $90,000 and personal property valued at about $10,000. The First Trust Company was appointed and qualified as administrator of the estate on March 17. It has acted as administrator at all times since. The probate court of Sedgwick county has at no time known of any heirs of Margaret Schindler. Since the appointment of the administrator the attorney-general of the state has appeared in all proceedings under R. S. 22-1201, 22-1202, 22-1203 and 22-1206. By order of the probate court the administrator has been named and is now in possession of the real estate in question. There has been no final settlement of the estate. The time for final settlement had been extended by the probate court at the time these cases were tried.
Case No. 31,723 was brought by a person who claimed to be the granddaughter of a brother of Margaret Schindler and the assignee of a grandson of the same brother. The petition alleged that plain tiff and her assignor were the sole and only heirs of Margaret Schindler. The facts were alleged about as they have been given here. Plaintiff claimed to be entitled to possession of the property.
In case No. 31,724 the action was brought by two persons who claimed that they were daughters of a brother of Margaret Schindler, and that they were the sole and only heirs of Margaret Schindler. This petition also alleged facts with reference to the property, and claimed the right to immediate possession of the real estate in question. There is no connection or relationship claimed between the plaintiffs in the two cases.
To each of these petitions the state and the administrator filed a plea in abatement and a motion to dismiss on the following theories: That the petition on its face does not state a cause of action because it pleads the pendency of the administration in the probate court, which proceedings show that title to the real estate which they claim is in the state of Kansas; and that defendant, The First Trust Company of Wichita, is holding title for the state, which cannot be sued. This motion was overruled. It is from the order overruling this motion that the appeal is taken.
The questions involved are stated in the brief of defendants as follows:
“I. When Margaret Schindler died intestate and without known heirs, the title and right of possession to all of her property vested in the state with a duty to reduce it to funds and hold it for the benefit of the common schools.
“II. The state’s title and right to possession can only be defeated by someone proving himself to be an heir in the manner provided by law.
“III. The probate court has constitutional and statutory jurisdiction of:
“(1) The administration of Margaret Schindler’s estate. .
“(2) The determination of her heirs.
“(3) The sale of the real estate if there is no heir.
“The probate court’s jurisdiction for these purposes attached at the time of filing the application for the appointment of an administrator; and the district court cannot take jurisdiction of any matter or thing that will interfere with the probate court's jurisdiction.
“IV. The state, by the attorney-general, has the right and duty to control the possession and conserve the estate for the benefit of itself and unknown heirs while the title and right to possession is vested in the state and may designate such party as the attorney-general thinks proper to possess and conserve it; and the possession of the attorney-general and such party as he may designate is the possession of the state.
“V. Unknown claimants to be heirs of Margaret Schindler, contending for the possession of her real property as heirs prior to the time of proving themselves heirs in the probate court, have no such right of possession of the real estate of Margaret Schindler as will enable them to maintain an action against the state or its agent holding possession for itself and for them; and the district court should not take jurisdiction of such suit.
“VI. There is no legislative authority to authorize a suit against the state or its agents, holding the real estate of Margaret Schindler, by one claiming to be an heir to recover from the state or its agent the real estate of Margaret Schindler; and the appellees cannot maintain a suit in ejectment in the district court for that purpose. The appellee’s remedy is to prove their heirship in the probate court in the time and manner provided by statute.”
The matter of the disposition of the real estate of a person who dies intestate and without heirs has been dealt with by our constitution and statutes. The constitution provides that the proceeds from the sale of such land shall go to the common-school fund. R. S. 22-933 to 22-935 provide how that shall be done. The sections are not lengthy and will be quoted here.
“In all cases where persons die without heirs, and intestate, it shall be lawful for the superintendent of public instruction of the county where any land lies belonging to the estate of such person dying without heir and will, after a lapse of three years from the date of letters of administration’ upon such estate, to file a petition in the probate court of the county granting such letters, setting forth in said petition — First, that such person died without heirs, and intestate; second, that three years have elapsed since the date of the letters of administration; third, a description of the real estate; jourth, that no debts remain unpaid of this estate, not barred by the statute of limitation. Such petition shall bo verified by the affidavit of the county superintendent of public instruction, or by some person who has knowledge of the fact.
“It shall be the duty of the probate court, on the filing of the petition mentioned in the preceding section, and being satisfied that the facts stated in said petition are true, to issue an order to the administrator to sell the real estate described in such petition in the same manner as real estate is sold by administrators for the payment of debts due from deceased persons; and the same proceedings shall be had in confirming the sale and the execution of the deed by the administrator as is provided by law for the sale of real estate for the payment of debts of any deceased person.
“It shall be the duty of the administrator, after the payment of the costs of said petition and making said sale, and six per cent commission to each administrator, to pay to the county treasurer of the county where the land is situate the remainder of the purchase money for the benefit of the common schools of the state, and shall take duplicate receipts therefor; and it shall be his duty to file one of such duplicates with the probate court of the proper county. If at any time within twenty-one years after the date of payment of said money to the county treasurer any persons shall appear and claim said money as the rightful heir to said estate, and shall prove heirship satisfactorily to the probate court, the judge of said court shall so certify, and the state treasurer shall pay over to such claimant the sum so received from the county treasurer from such-estate.”
It will be noted that a necessary element to the operation of the statute is that the person should have died intestate and without heirs. The question with which we are confronted is, Did the decedent in this case die without heirs? The plaintiffs in these two cases claim that she did not. They are seeking to determine that fact in court, whether by the proper form of action or not we will see presently. At any rate they are contesting this question and asking the court to determine it. Obviously, if the court, should determine either one of the plaintiffs in these two cases to be an heir then the element necessary to put R. S. 22-933 to 22-935 into operation would be lacking. Defendants argue that the title must vest some place when the holder of it dies, and that in the absence of heirs it vests in the state. This might very well be true, but we do not know in this case whether decedent died without heirs or not. We are not called upon here to decide a case where something like a tax deed has gone into effect after the death of a decedent. Here, for all we now know, an heir is claiming the estate. If any of them should be successful then the title to the real estate in question vested in him on the death of decedent. The mere fact that the heirship is difficult of proof or the relationship remote does not change the rule. The state only has an interest in the real estate contingent on the failure of an heir to appear within three years. At the end of that time the land may be ordered sold by the probate court on petition of the county superintendent of public instruction in the same manner as real estate is ordered sold to pay debts. There is nothing in that provision to indicate that title to the real estate vested in the state. Not until after that sale has been had do the proceeds get into the hands of an officer representing the state. When that happens it is ordered paid to the state treasurer, who holds it for twenty-one years and then pays it to the common-school fund. We do not regard the finding of the probate court that there were no known heirs of decedent as of any force or effect. The fact is there are persons here insisting that they are the heirs and asking an opportunity to establish their heirship in court. The order of the probate court cannot change that fact.
The defendants next argue that the probate court secured jurisdiction of this matter at the time of filing the application for the appointment of an administrator and the district court cannot take any action that would interfere with the probate court’s jurisdiction.
We have seen that while the title to the real estate passes to the state immediately when intestate dies, providing an heir does not appear within the statutory time to claim it, where one claiming as heir does so appear the title is held in abeyance awaiting the outcome of any such action.
The matter of where title to real property of a deceased person passes has been covered by statute in this state. It passes directly to the heirs with right to immediate possession and to the rents and profits. (R. S. 22-108, 22-118, 22-120.) These statutes have been considered and passed upon by this court. (Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50.) That was a case where an action was brought to set aside a deed that had been given by a widow and which conveyed away the real estate owned by her deceased husband. The probate court had made a final settlement in accordance with the deed. The district court set aside the deed on the ground that it had been obtained by fraud. The holder of the deed appealed, and urged plaintiff was precluded from maintaining her action because of the judgment and decree of the probate court. This court said:
“This contention cannot be sustained. The personal property of the estate of Axel Lindholm was more than sufficient to pay his debts and the expense of administration; there was a sum left for distribution. The administrator, therefore, had nothing to do with the real estate. His bond was based on the value of the personal estate only (R. S. 22-313). Crops growing on the land at the time of the death of decedent passed to the administrator as a part of the personal property of the estate. (R. S. 22-502; Blakely v. Blakely, 115 Kan. 644, 645, 224 Pac. 65.) The real property itself passed to the heirs (R. S. 22-108, 22-118), with right to possession, and rents and profits. The administrator had nothing to do with it unless it was necessary to pay debts, as provided by R. S. 22-801. (Head v. Sutton, 31 Kan. 616, 3 Pac. 280; Schmidt v. Loan & Trust Co., 112 Kan. 535, 537, 211 Pac. 630; Nagle v. Davison, 124 Kan. 230, 257 Pac. 962.) Although the personal estate only is to be appraised (R. S. 22-504), the inventory shall include all the real estate of the deceased. (R. S. 22-501.) There are several reasons why it is advisable to have the real estate listed in the inventory, but this listing gives the administrator no authority over it, and gives the probate court no jurisdiction to dispose of it, except under conditions specifically provided by statute. It is not contended that any of these conditions existed in this case. Hence, the probate court had no jurisdiction of the real estate — no question concerning the real estate before it to be acted upon — at the time of the final settlement of the estate of Axel Lindholm. The order of final settlement is not, therefore, a bar to plaintiff's action to set aside the deed previously made to Nelson.” (p. 229.)
This was the holding of this court in Reading v. Wier, 29 Kan. 429. The question there was whether the administrator was bound to pay taxes on real estate of his decedent. This court held he was not, and used the following language:
“The lands of an intestate descend to the heirs, subject in certain contingencies to the payment of the debts of the intestate. The legal title is in the heirs, and the administrator takes no interest in the real estate, but possesses a naked authority to sell it on license to pay the debts where the personal estate is insufficient.” (p. 430.)
To the same effect is the opinion of this court in Head v. Sutton, 31 Kan. 616, 3 Pac. 280. There, in considering a similar question, this court said:
“The real estate of the intestate descended at once to his heirs, and the title thereof was vested in them subject only to the right of the administrator to sell the same for the payment of the debts in the manner prescribed by law. (Reading v. Wier, 29 Kan. 429.) So the title to the real estate, which the heirs took by descent, entitled them to the possession of it, and they had the right to receive, as against the administrator, all the rents and profits thereof.” (p. 619.)
It would be difficult to find a proposition that has been settled any more definitely by statute and decision than has this one.
Defendants urge that the statutes which have been quoted herein confer exclusive jurisdiction on the probate court to administer the real estate of a decedent where there are no heirs. The trouble about that is that we cannot say, until the outcome of these cases, that the decedent in this case left no heirs. The fact that the probate court made the order that the decedent died without known heirs cannot operate to confer jurisdiction on the probate court which it did not already have.
Defendants argue in this connection that R. S. 22-904 and R. S. 1933 Supp. 22-904a provide for the determination by the probate court of who are the heirs of a decedent who take the real estate under the statute of descents and distribution. This contention is met by the holdings of this court which have already been cited here and by other authorities which hold that a probate court has no jurisdiction to determine the title to real estate. In the case of Byerly v. Eadie, 95 Kan. 400, 148 Pac. 757, this court considered the question and said:
“In actions involving title or interest in real estate probate courts, except where the constitution of the states gives them general jurisdiction, have no power or jurisdiction to determine the title to realty. (Cooper v. Armstrong, 3 Kan. 78.) ... In Stewart v. Lohr, 1 Wash. 341, 25 Pac. 457, one of the cases cited in the opinion (Cooper v. Armstrong) it was said: ‘For while it is true that the pz-obate court has jurisdiction to detei-mine the claims to property as between those interested in the estate, this authority only goes to the extent of determining their relative interests as derived from the estate, and not to an interest claimed advei-sely thereto.’ In that case the person claiming adversely to the estate was the husband of the deceased party, but it was held that this made no difference; that ‘the husband, though interested in the estate of his deceased wife, was, so far as the claim he was attempting to assert, an entire stranger thereto’ (p. 343), citing Budd v. Hiler, 27 N. J. Law 43. To the same general effect see Ferguson et al. v. Hunter, 7 Ill. 657; Stewart and wife et al. v. Pattison’s Exc’r et al., 8 Gill (Md.), 46; Hayden v. Burch et al., 9 Gill (Md.), 79. In J. W. Hollman v. W. W. Bennett et al., 44 Miss. 322, it has been held that probate courts have no constitutional or inherent jurisdiction over land for any purpose whatever, but only such special conditional power as is expressly conferred by statute.” (p. 404.)
This opinion was approved by this court in the case of First Colored Baptist Church v. Caldwell, 139 Kan. 45, 30 P. 2d 144. In the opinion denying a rehearing in that case this court amended the syllabus in the opinion affirming the decision of the trial court to read as follows:
“While under the provisions of R. S. 22-904 probate courts have authority to find who are the heirs, devisees and legatees of a deceased person, the statute does not confer on the probate court the authority to adjudicate title to real estate.”
See, also, Cotton v. Wallace, 138 Kan. 814, 28 P. 2d 985. In that case the action was an appeal from an order of a probate court refusing to set aside a final settlement. It was urged that the administrator should have been compelled to settle for the proceeds of the sale of a quarter section of real estate. In dealing with that question this court said:
“Appellants argue the purported deed to the Tama county land was not a deed, but an attempt to convey property by will without complying with the formality of making a will. A decision on that point would involve an adjudication of the title to i-eal estate. The proceeding under review is an order of a probate court approving a final report of an executor. Probate courts do not have jurisdiction to hear and determine actions involving title to real estate. (See R. S. 20-1101.) Hence, the matter of the purpoi’ted conveyance of the Tama county land was not propei-ly befoi-e the trial eoui't and may not be determined in this appeal.” (p. 816.)
It will be seen that this court has steadfastly adhered to the rule that a probate court has no jurisdiction to adjudicate the title to real estate even though the statutes do confer on them the authority to make a finding as to who are the heirs.
Defendants rely on the case of Holmes v. Conway, 128 Kan. 430, 278 Pac. 8. In that case the administrator had a large sum in his hands which he had derived from oil royalties. Thirty-three people claimed to be heirs of the deceased and entitled to a share of the estate. The administrator brought an action seeking .to have the district court determine who were the heirs of deceased. The administration of the estate was going on in probate court at the time. All the claimants had submitted themselves to the jurisdiction of the probate court. The court held:
“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. ¶ 1.)
The rule thus stated is not in point here because, as we have already seen, the probate court does not have power to grant the relief sought. The relief sought is the determination of the title to real estate. That cannot be had in the probate court. This court had such a situation in mind when it said in the above case:
“Of course, there may be circumstances where findings of the probate court with respect to who are entitled to the distributive shares of the estate are not conclusive. (See Lindholm v. Nelson, 125 Kan. 233, 264 Pac. 50, and cases cited therein.) Situations may exist in which persons claiming such shares might bring and maintain actions in the district court. This-, however, would not concern the administrator. He is appointed by the probate court, and when he makes distribution in accordance with the orders of the court he has no further responsibility in the matter. If there are conflicting claims between persons with respect to their rights, or shares of the estate, they may present such claims either to the probate court or they may bring independent actions in the district court. In the instant case, when the heirs have been ascertained in the probate court and their respective rights determined, we think the plaintiff who is acting as a trustee in so far as the oil royalties are concerned, will find little difficulty in distributing them to their rightful owners.” (p. 433.)
We hold, therefore, that the actions are simple ones where parties who claim to be entitled to the possession of real estate find it in the possession of one .whom they claim is not entitled to the possession of it. In such a case ejectment is the proper remedy. The outcome of these actions will decide whether these particular plaintiffs own the title to the real estate in question and are entitled to possession of it.
What has been said here settles the question of whether the suit is against the state, and whether consent to sue has been given in favor of the contentions of plaintiff.
There are some further questions in the action which merit consideration.
The attorney-general has been appearing so far in these actions under R. S. 22-1201 to 22-1206. These sections provide a wise plan by which the estate of a person who dies without heir or a will may be preserved for the common-school fund and saved from spoliation. The attorney-general has already saved this estate from an attack on the part of the people who claimed it under a contract with deceased. (See Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665.)
It is the duty of the attorney-general to appear and secure permission to answer and interplead and defend, in the name of the state, all cases that involve this estate, both in the district court and the probate court. That official has entire control of litigation growing out of claims of people claiming to be heirs of deceased. (See R. S. 22-1201 et seq.; also, State, ex rel., v. Rector, 134 Kan. 685, 8 P. 2d 323.)
From what has been said here it will be seen that the administrator of the estate of decedent has no right to possession of the real estate in question. There should, however, be a conservator appointed to take charge of the property, collect the rents, make repairs, pay insurance and perform similar duties.
No reason appears why the company now acting as administrator should not act in this capacity, but such an appointment should be made.
With the decision of this appeal there will be two cases pending in the district court of Sedgwick county to determine whether the plaintiffs in these actions are heirs of deceased. They each are actions to be tried before a jury.
The plaintiffs in each of the cases claim the real estate in question from a common ancestor. The actions are such as should be consolidated for trial to the end that the title to the property should be adjudicated as speedily and with as little expense as possible. This may be done under the authority granted the district courts by R. S. 60-765. A wide discretion is granted district courts by that section, and these two actions call for the exercise of it. A proper order to be made by the trial court would be that the real estate shall not be sold for taxes during the pendency of these actions.
The judgment of the trial court overruling the demurrers and pleas in abatement is affirmed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to foreclose a mortgage, recorded June 10, 1927, given to secure a note of $38,000 dated May 31, 1927, and due in five years. The mortgage was upon the entire title and interest of all the owners of two tracts of real property known in the record as the “Mathewson pasture” and the “Levy property.” The defendants, Daniel E. Young and William W. Haworth, as trustees, answered with a general denial, and by cross petition alleged that they were trustees in two mortgages, one of which was executed by J. Shannon Nave and others, August 13, 1928, upon an undivided one-half interest in the property, and the other executed by Charles W. Zeigler and others, on July 21, 1928, on an undivided one-eighth interest in the property; that they had foreclosed these mortgages and had purchased the property at the sheriff’s sale held by virtue of such foreclosure, and that upon demand of the sheriff, and under and by virtue of the laws of the state, they paid to the sheriff the taxes then due, in the amount of $5,288.19, on the tract known as the Mathewson pasture and $2,411.88 on that known as the Levy property. They alleged that the taxes so paid are a first and prior tax lien on the property, superior to the mortgage lien of plaintiff; that they were forced to pay such taxes to protect their own mortgage lien and to protect plaintiff’s mortgage lien, and they were paid under the direction of the court, which had established the tax lien as a first and paramount lien on the property. They asked to have the amount paid in taxes decreed to be a lien upon the property prior and superior to that of the plaintiff, and for other proper relief.
After a hearing the trial court allowed the defendants Young and Haworth, trustees, three-eighths of the taxes they alleged they paid, with interest thereon, aggregating $3,753.63, as a first and prior lien upon the property, and allowed plaintiff a lien under its mortgage subject to the lien of Young and Haworth, trustees, and decreed the foreclosure and sale of the property to satisfy both liens. Plaintiff has appealed from that portion of the decree allowing to the defendants Young and Haworth, trustees, a lien superior to that of plaintiff.
At the trial the validity of plaintiff’s mortgage and the amount due it were conceded. The only question before the court was whether or not defendants Young and Haworth, as trustees, were entitled to a first lien for taxes paid in the foreclosure of their second mortgages. The evidence concerning that consisted of the records and files in the two foreclosure actions and in .a partition suit, later to be mentioned. There were two of the foreclosure actions. Young and Haworth, as trustees, were plaintiffs in each of them. In one of them J. Shannon Nave and others were'defendants, and the mortgage foreclosed covered an undivided one-half interest in the Mathewson pasture and the Levy property, also other property. The plaintiffs recovered a personal judgment against J. Shannon Nave in the sum of $210,587.86, against Charles W. Zeigler in the sum of $70,505.81, and William Zeigler in the sum of $12,130.82. The decree provided for the sale of the real property described in the mortgage, and that upon the sale the proceeds thereof be applied: “1. To the payment of the costs of this action; 2. To the payment of taxes, if any, against said property; 3. To the payment of the judgment herein established; 4. And the remainder, if any, shall be brought into court to await the further order of the court.” The return of the sheriff under the order of sale recites that he sold the undivided one-half interest in the Mathewson pasture and the Levy property, and the other property, to the plaintiffs in the action, “they being the highest and best bidders therefor, said bid being in the amount of $122,000 plus taxes in the amount of $10,349.88, plus court costs in the amount of $153.65.” The trial court, in decreeing the confirmation of the sale, directed that a certificate of purchase be issued to the purchaser at such sale, fixed the period of redemption at eighteen months, provided that if the property were not redeemed by those entitled to redemption within that time that a good and sufficient sheriff’s deed should be issued to the purchaser, and also that—
“Taxes paid by the legal representatives to the T. Reid Zeigler estate on property coming through that estate to William Zeigler and to the legal representatives of Charles W. Zeigler, deceased, shall constitute a tax lien and shall be protected against the respective interests so held.”
In the other foreclosure action against Charles W. Zeigler and others the plaintiffs obtained a personal judgment against Charles W. Zeigler for $150,616.34 and a decree foreclosing their mortgage on an undivided one-eighth interest in the Mathewson pasture and the Levy property, also upon other property. The decree provided for the sale of the property and the application of the proceeds substantially as in the other case. The sheriff’s return showed the property was bid in by the plaintiffs Young and Haworth, as trustees, for $22,500, plus taxes in the amount of $416.34, plus court costs in the amount of $121.80. The taxes mentioned were not taxes on the Mathewson pasture or the Levy property, but on other land described in the mortgage and decree. The decree of confirmation contained recitals similar to those in the decree of confirmation in the other case.
The plaintiff in this action, the Farmers & Bankers Life Insurance Company, was not a party defendant in either of these foreclosure actions, and the decree of foreclosure in each case specifically recited that the decree was subject to the lien of the first mortgage held by the Farmers & Bankers Life Insurance Company.
Thereafter one of the parties having an undivided interest in the Mathewson pasture and the Levy property brought an action for their partition, setting out the shares and interest of each of the parties to the action, and alleged that such title and interest were subject to the mortgage in favor of the Farmers & Bankers Life Insurance Company. That company was made a party defendant in the action, and answered that it held the mortgage now sought to be foreclosed on the property, and that the same was a first and prior lien as against the interest and shares, or claims, of all the other parties. The findings and decree of the court in the partition action determined the interest, or shares, of contesting litigants in respect to the property. Among other things it was found that since the sale of the property in the foreclosure action, in which Young and Haworth, trustees, were plaintiffs and J. Shannon Nave and others were defendants, the “trustees have been compelled to pay taxes, for which they should have a lien against the respective interests in the property.” The decree, among other things, recited “that the entire interest of all parties named is subject to a mortgage executed to the Farmers & Bankers Life Insurance Company, a corporation, . . . and that the undivided one-fourth interest of Zula M. Zeigler is subject to a lien for taxes paid on said property by the said Daniel R. Young and William W. Haworth, as trustees, in the amount of one thousand nine hundred twenty-five and 2/100 dollars ($1,925.02).” There was a similar decree as to a smaller item of taxes.
The decree in the partition action in respect to taxes has no bearing on the question before us, for the reasons: (1) It relates to taxes paid by Young and Haworth, trustees, after the sale in the foreclosure of the mortgage executed by J. Shannon Nave and others, and does not relate to taxes paid out of the proceeds of that sale; (2) it simply adjusted as between the owners of separate shares of the property items of taxes paid by one of them, in harmony with R. S. 79-426; and (3) all that was adjudged in the decree with respect to shares of the respective parties in the property, adjustment of taxes and other liens, was specifically made subject to the mortgage of the Farmers & Bankers Life Insurance Company-
The foreclosure of the second mortgage, executed by Charles W. Zeigler and others, has no bearing on the question before us for the reasons: (1) The taxes paid out of the proceeds of the sale in that action were taxes on land not involved here; (2) the decree specifically provided the mortgage was foreclosed subject to the first mortgage to the Farmers & Bankers Life Insurance Company; and (3) that company was not a party to the action, and nothing said in the decree could be binding upon it.
In the foreclosure of the second mortgage, executed by J. Shannon Nave and others, the taxes paid were in part taxes on the property here involved, but the Farmers & Bankers Life Insurance Company was not a party to that action, and the decree specifically foreclosed the mortgage subject to the mortgage to the Farmers & Bankers Life Insurance Company. What was said in the decree of confirmation in that case with respect to taxes related to an adjustment or charge against the owners of shares or interest in the property not then being foreclosed. It was not the purpose of the decree to make any taxes a lien in favor of the purchasers at the sheriff’s sale in that action superior to the lien of the mortgage to the Farmers & Bankers Life Insurance Company, nor could it have had that effect had such been the purpose.
Young and Haworth, trustees, contend they paid the taxes at the time they purchased the property at the sheriff’s sale. From a legal viewpoint their contention is erroneous. The taxes paid at that time were paid out of the proceeds of the sale, as the decree of the court in that case provided, which decree conforms to our statute (R. S. 79-419). While in the return of the order of sale the sheriff noted their bid in three separate items, of “$122,000, plus taxes of $10,349.88, plus court costs of $153.65,” their bid was of necessity the gross amount of those sums, namely, $132,503.53. This is the amount out of which the court decreed the taxes and costs should be paid, and out of which they, of necessity, were paid. It is the amount which should have been inserted into the certificate of purchase issued to Young and Haworth, trustees, and is the amount, with interest and other proper charges (R. S. 1933 Supp. 60-3439), which anyone holding the equity of redemption would have been compelled to pay to Young and Haworth, trustees, in order to redeem the property from the sale. We find no basis in this evidence to support the argument that Young and Haworth, trustees, in addition to getting their certificate of purchase for the gross amount of their bid, were entitled to have any part retained as a lien upon the property superior to that of the first mortgage. The holder of the first mortgage was not a party to that action. All that was done in it was specifically done subject to the rights of the holder of that mortgage.
We do not regard the decisions of this court in Bank v. Wyman, 65 Kan. 314, 69 Pac. 326, cited by appellee, as being in point. Many cases from other jurisdictions have been cited by both parties. We have examined many of these and find them not helpful because the statutes construed, or the facts, differ materially from those before us. We regard this case, under the facts, as being controlled by our statutes.
The judgment of the court below is reversed, with directions to enter judgment in favor of the plaintiff, giving it a first lien for the amount disclosed by its petition.
Hutchison, J., not sitting.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal from a ruling in a declaratory judgment action prohibiting chiropractors from using acupuncture in treating their patients because it constituted surgery, which is a prohibited practice for chiropractors.
The factual situation leading to the filing of the action may be informative. Such facts as stated in the trial court’s memorandum may be stated in substance.
The case was filed June 16, 1975. The nature and the problems presented underwent considerable change since its onset. Initially the case was filed in Sedgwick County. Subsequently the venue was transferred to Shawnee County. At that time the controversy stemmed from the fact that the 1974 Kansas Legislature had authorized the State Board of Healing Arts to make a study of the subject and practice of acupuncture. The state board was empowered to authorize qualified persons to practice acupuncture for experimental purposes and exempted such persons from criminal or civil prosecution on licensing grounds. In accordance with such grant of authority, the state board did set up educational requirements for and authorization for the experimental practice of acupuncture. Upon meeting the requirements, certain medical doctors and chiropractors became eligible. Reports on such acupuncture practice were required to be sent to the state board. All proceeded uneventfully until the state board set December 1, 1975, as the end of the experimental study and practice. This date was set in order to afford time for the analysis of the study and preparation of a report by the state board to the 1976 legislature. The plaintiffs at the time of filing and now (although the names change from time to time) were and are licensed Kansas chiropractors. The plaintiffs, in late 1975, were primarily concerned with the interruption of their acupuncture practice between December 1, 1975, and the time the 1976 legislature took action on the report. In other words, it was anticipated that the 1976 legislature would take some action on acupuncture. If the plaintiffs were satisfied with that action, the case would be resolved. If the plaintiffs were not satisfied with the legislative action, then a challenge would be made, but it would be over the new enactment. By agreement the status quo was preserved between December 1, 1975, and the legislative session. During the 1976 legislative session, the report was received and hearings were held. However, no laws were enacted. Due to counsel changes and other causes, little occurred in the case in 1976. Ultimately, the case underwent a metamorphosis into a full-blown declaratory judgment action seeking a declaration that no special legislation was needed to permit chiropractors to practice acupuncture as it was not surgery and was already a permissible form of chiropractic procedure. In its new form the case went to trial.
After an extensive trial, the judge issued a memorandum dated August 18, 1977, which contained findings of fact and conclusions of law. Only two of the findings were objected to by the plaintiffs. In the interest of brevity, we will summarize the findings other than the two against which objections were lodged:
Acupuncture is a modality of treatment which is a healing art and falls within the purview of the Board of Healing Arts (by agreement of parties). It is a name ascribed to a variety of treatment procedures which are basically Chinese in origin. Some forms of acupuncture do not involve the insertion of a nonhollow wire through the skin but for the purpose of this case, acupunc-. ture is considered to involve the use of such nonhollow wires or needles as this is the dominant form and the form plaintiffs are seeking to be permitted to utilize in their practice.
The insertion of the wires or needles through the skin is considered by defendant attorney general to be the practice of surgery. It is a form of ancient Chinese folk medicine. Prior to the Communist takeover of China, acupuncture was practiced by so-called “barefoot doctors” and was totally separate from and not a part of the training and practice of graduates of Chinese medical schools.
In the twenty plus years between the taking of power by the Chinese Communists and the thawing of relations between the United States and China during the Nixon administration, acupuncture gained “respectability” in the Chinese medical community and a degree of amalgamation occurred. When Western eyes were permitted into China during the Nixon years, acupuncture received world wide attention for the first time. The great interest of the Western World in acupuncture is basically a phenomenon of the 1970’s.
Acupuncture is a useful modality of treatment for a variety of health disorders and in anesthesia. The reason why acupuncture works and its underlying theory have never been explained to the satisfaction of the scientific community.
The origin of acupuncture lies in antiquity and until the last few years it was solely a folk art of the Far East — handed down from father to son, so to speak, as opposed to being acquired from traditional formal educational institutions. The theory of chiropractic developed along separate lines and is of very recent vintage by comparison. Acupuncture methods and theories were taught in chiropractic colleges for the first time in the 1970’s. Such courses are not taught in all chiropractic colleges and are taken on an elective rather than on a required basis.
Some risk of infection and injury is incurred by a patient receiving acupuncture and the same should be administered only by trained persons (by agreement of the parties and testimony). Requirements as to training must exist before a person can practice acupuncture for the safety and protection of the public (by agreement of the parties and testimony). Acupuncture has caught the public fancy and great interest in it exists. It is a rapidly expanding field.
Chiropractors in Kansas are expressly permitted to draw blood for diagnostic purposes. “Surgery” is a broad term employed to cover the work surgeons do. “Surgery” covers procedures in which no incision or entering of the skin is involved; for example, a closed reduction of a fracture. The traditional chiropractic theory involves external manipulation, applying heat to the exterior, etc. The only piercing of the skin permitted is the drawing of blood for diagnostic purposes.
The factual statements just recited are not disputed by the parties. The plaintiffs object only to findings of fact 18 and 22 which are as follows:
“18. Acupuncture is a separate and distinct modality of treatment and is not a part of any other modality of treatment.”
“22. Acupuncture, being neither ‘fish nor fowl’ is a separate modality of treatment and is not a natural part of any other modality of treatment.”
Following the above listed findings of fact the court made conclusions of law which we quote:
“1. Acupuncture is a separate modality of treatment within the purview of the Board of Healing Arts;
“2. Acupuncture is not inherently a part of chiropractic theory;
“3. The traditional definitions of surgery arose before the interest in acupuncture occurred;
“4. Acupuncture involves the piercing of skin for treatment, not diagnostic purposes, and comes within the term ‘surgery’ as it is now defined and commonly understood;
“5. If chiropractors are to be permitted to practice acupuncture in Kansas, this authorization must come from legislation rather than by judicial decree;
“6. The legislature is equipped to hold public hearings and determine if chiropractors should be expressly permitted to practice acupuncture and, if so, to direct the Board of Healing Arts to prepare appropriate regulations concerning same;
“7. K.S.A. 65-2871 (1976 Supp.) does not permit chiropractors to practice acupuncture.”
Subsequently the above conclusions of law and findings were made the order of the court, the court’s memorandum of decision was filed August 19, 1977, and the journal entry was filed March 27, 1978.
The legislature in 1976 enacted a very complete and comprehensive revised Healing Arts Act. K.S.A. 1978 Supp. 65-2871 reads:
“For the purpose of this act the following persons shall be deemed to be engaged in the practice of chiropractic: (a) Persons who examine, analyze and diagnose the human living body, and its diseases by the use of any physical, thermal or manual method and use the X-ray diagnoses and analysis taught in any accredited chiropractic school or college and (b) persons who adjust any misplaced tissue of any kind or nature, manipulate or treat the human body by manual, mechanical, electrical or natural methods or by the use of physical means, physiotherapy (including light, heat, water or exercise), or by the use of foods, food concentrates, or food extract, or who apply first aid and hygiene, but chiropractors are expressly prohibited from prescribing or administering to any person medicine or drugs in materia medica, or from performing any surgery, as hereinabove stated, or from practicing obstetrics.”
The specific question before us is whether the legislators intended to grant to chiropractors the right to use acupuncture in their treatment or was it specifically forbidden?
In considering the intent of the legislature the words of a statute must be taken in the sense in which they are generally understood. However, the language used in designating persons deemed engaged in the practice of chiropractic, which reads: “[Piersons who adjust any misplaced tissue of any kind or nature, manipulate or treat the human body by manual, mechanical, electrical or natural methods or by the use of physical means” should not be utilized to set aside the settled meaning of the practice of chiropractic and obliterate the distinction between the practice of chiropractic and the practice of medicine and surgery.
With these limitations we will attempt to determine the intention of the legislature in passing the Healing Arts Act in 1976. In doing so we consider the trial court’s findings. Such findings may be summarized in part as follows:
Acupuncture is considered, for the purpose of this case, to involve the use of nonhollow wires or needles which is the dominant form, and the form plaintiffs are seeking permission to utilize. It is a form of ancient Chinese folk medicine. Prior to the Communist takeover acupuncture was separate and not a part of the training in Chinese medical schools. The great interest of the Western World in acupuncture is basically a phenomenon of the 1970’s. The theory of chiropractic developed along separate lines and is of very recent vintage by comparison.
At this point the trial court found in findings 18 and 22 in substance: Acupuncture is a separate and distinct modality of treatment and is not a natural part of any other modality of treatment.
We are asked to set aside the findings.
It is only during the last ten years that any of the branches of the healing arts — the practice of medicine and surgery, the practice of osteopathy and the practice of chiropractic — has recognized or known of the use of acupuncture.
We do not fault the trial court for its findings 18 and 22 — that acupuncture is a separate modality of treatment and not a natural part of any other modality of treatment. Certainly it was not a natural part of any other modality or treatment known to the branches of the healing arts because it was not known to the Western World until the early 1970’s.
The court might have extended its findings 18 and 22 by finding further that acupuncture was adopted by all three branches of the healing arts in the early 1970’s, and became a modality of their treatment. It would appear that the findings taken as a whole do reach that conclusion.
The plaintiffs’ objections to the trial court’s conclusions of law presents the real crux of this litigation. The plaintiff questions conclusions 4, 5, 6, and 7. The objections will not necessarily be considered in the order mentioned.
We are asked, did the trial court err in its conclusion of law number 5 that if chiropractors are to be permitted to practice acupuncture in Kansas, this authorization must come from legislative rather than by judicial decree?
We are forced to agree with the trial court’s conclusion. In State, ex rel., v. Gleason, 148 Kan. 1, 4 and 5, 79 P.2d 911 (1938), we stated:
“It has been uniformly held in this state [citations omitted] that in the exercise of its police power, and for the welfare and protection of its citizens, a state may enact statutes fixing educational and other reasonable and proper qualifications for those who, for a compensation, engage in the healing of the sick, afflicted, or injured, and require such persons, before engaging in such practice, to procure a certificate evidencing the fact they have attained such qualifications, and authorizing them to practice the art or profession of healing in harmony with established standards of their respective qualifications, as indicated by such certificate. The authority of the state to enact such statutes is conceded in this action.”
The construction of the statute is a function of the judiciary. In the construction of the statute the legislative intent is to be determined from a general consideration of the whole act. State, ex rel., v. Moore, 154 Kan. 193, 117 P.2d 598 (1941).
We are next asked — did the trial court err in its conclusion of law number 4 that acupuncture involves the piercing of skin for treatment, not diagnostic purposes, and comes within the term “surgery” as it is now defined and commonly understood?
There is much confusion as to what the legislature intended by the use of the term “surgery” in the Healing Arts Act. In designating persons deemed engaged in the practice of medicine and surgery, K.S.A. 1978 Supp. 65-2869 states in part:
“(b) Persons who . . . perform any surgical operation of whatever nature by the use of any surgical instrument, procedure, equipment, or mechanical device for the diagnosis, cure or relief of any wounds, fractures, bodily injury, infirmity, disease or physical or mental illness, of human beings.”
As noted above, in designating persons deemed engaged in the practice of chiropractic, K.S.A. 1978 Supp. 65-2871(b) describes them as persons who adjust any misplaced tissue of any kind or nature, manipulate or treat the human body by manual, mechanical, electrical or natural methods or by the use of physical means.
The defendants state in their brief:
“The word ‘surgery’ has developed a rather special meaning to the ordinary laymen. In particular, it is generally used to denote that procedure carried on in hospitals involving major incisions in the body. However, this conversational meaning is not the dictionary definition of the word. Webster’s Third New International Dictionary defines ‘surgery’ as a ‘branch of medicine concerned with diseases and conditions requiring or amenable to operative or manual procedure . • . .’ This definition is much broader than the conversational meaning we have assigned to it.
“It is interesting the definition given in Webster’s Third New International is identical to the definition contained in major medical dictionaries. . . Emphasis ours.
Should we give the term “surgery” the broad meaning contended for by the defendants, we would render the Healing Arts Act nonsensical. K.S.A. 1978 Supp. 65-2871 grants to chiropractors the right to “treat the human body by manual, mechanical ... or natural methods or by the use of physical means.” In the last phrase of the same sentence they are prohibited from practicing surgery which includes manual procedure if we follow the strict dictionary definition of “surgery.”
We are forced to conclude the legislature had in mind, when using the term “surgery,” a more limited meaning such as the rather special meaning developed by the ordinary layman, i.e., “Surgery is what surgeons do” — sever the tissues of the body for the purpose of penetration for treatment, replacement or removal of afflicted parts. The simple piercing of the skin by the insertion of a solid wire or needle, not intended to separate or sever tissue, for the purpose of treating by acupuncture is not “surgery” as that term is used in the Healing Arts Act.
The last question is, did the trial court err in its conclusion of law number 7, that K.S.A. 1978 Supp. 65-2871 does not permit chiropractors to practice acupuncture.
Again we are forced to conclude the trial court erred.
Without extending this opinion further by repetition of fact, it will suffice to say that at the time the legislature passed the comprehensive Healing Arts Act it was familiar with all of the facts herein stated. The legislature knew acupuncture had been adopted as a modality of treatment at the same time and along with the other two branches of the healing arts. The legislature in 1974 authorized chiropractors, along with osteopaths, physicians and surgeons, upon meeting certain requirements, to use acupuncture in their practice for the purpose of filing a report with the legislature as to results of the use of acupuncture. The legislature knew that acupuncture was being taught in accredited chiropractic schools.
The legislature must have known of the analgesic values of acupuncture used and searched for by all branches of the healing arts to reduce the feeling of pain and relax the patient for treatment.
We conclude that acupuncture had been adopted by the chiropractors as a modality of their treatment at the time of the enactment (February, 1976) of K.S.A. 1978 Supp. 65-2871, and was so known to the legislature. The practice of acupuncture is not prohibited by such act.
The defendants challenge the right of plaintiffs to bring this action because of lack of the prerequisites of a sufficient actual controversy.
The contention is without merit.
The plaintiffs, under the opinion of the attorney general, would be subject to prosecution if they continued to practice acupuncture because in his opinion it constituted surgery and as such was prohibited to chiropractors.
Plaintiffs are entitled to a declaratory judgment to interpret the meaning of “surgery” under K.S.A. 1978 Supp. 65-2871 before they are subject to criminal prosecution:
“It has long been settled courts also have jurisdiction, under the Declaratory Judgment Act, to determine the validity of statutes or ordinances before a party undertakes to act in apparent violation thereof. That is the purpose and intent of the remedial relief contemplated by- the act. (G.S. 1949, 60-3132; Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P.2d 221; State, ex rel., v. Shanahan, 178 Kan. 400, 286 P.2d 742; and see, School District v. Sheridan Community High School, 130 Kan. 421, 286 Pac. 230.)” State Association of Chiropractors v. Anderson, 186 Kan. 130, 135, 348 P.2d 1042 (1960).
The judgment is reversed and the trial court is directed to enter an order in favor of the plaintiffs in harmony with the conclusions reached in this opinion.
Fromme and McFarland, JJ., not participating.
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The opinion of the court was delivered by
Fromme, J.:
Ronald Quick was convicted of aggravated robbery (K.S.A. 21-3427) in a jury trial and sentenced to a period from five years to life. A summary of the factual situation out of which this conviction arose follows:
At 7:00 p.m. on May 10, 1978, a man walked into the F & S Liquor Store in Hutchinson, Kansas. Stella Stewart was the only employee on duty. The man pulled a handgun and demanded money. The man received approximately $130.00. He then left the store and crossed the street in the direction of a motel.
Mr. Richard Peterson and his wife were playing with a “frisbie” in the driveway of the motel. Mr. Peterson testified that he saw a passenger leave his vehicle, cross the street to the liquor store, and hurriedly return to the car shortly thereafter. He identified the defendant as that man and was positive it was the defendant because he had worked with defendant at a roofing company in Hutchinson. Peterson testified the driver in the car started to “take off” before the defendant was completely inside the car. The car was an orange colored Ford Pinto. Mrs. Stewart, the clerk, was able to identify the defendant at the trial by two moles on his face. Defendant was arrested in Hutchinson two days later. He has continued to maintain his innocence.
At the trial defendant testified in his own behalf as follows: He is a painter by trade. He did not commit the crime. At the time of the robbery he lived in Nickerson, Kansas. He was in the home of a friend, Noel Dawkins, at 7:00 p.m. on the evening the robbery occurred. He has never owned an orange Ford Pinto automobile and did not ride in one on the evening of May 10, 1978.
His friend, Noel Dawkins, testified at the trial. He verified defendant’s presence at his house from 6:30 to 7:30 that particular evening. Another friend, Marion Russell Walton, also testified at the trial. He accompanied the defendant when the defendant visited Noel Dawkins. They were at the Dawkins home from 6:30 to 7:35 p.m. on the evening of the robbery. The defendant owned and was driving a green Chevrolet automobile that evening. Defendant also produced two other witnesses who testified a green Chevrolet automobile came to the Dawkins residence around 7:00 p.m. on the evening of May 10, 1978. The alibi evidence was substantial.
The sufficiency of the State’s evidence is not being questioned. The above recital of evidence of alibi bears only on a question raised concerning the improper exclusion of evidence. Defendant offered to introduce evidence that a man by the name of David Fors admitted committing the crime of which defendant was convicted, and that Kathy Gore, a friend of David Fors, owned an orange Pinto automobile similar to the getaway car used in the robbery. The first two points concern the exclusion of this evidence.
Prior to trial the prosecution filed in writing a “motion in limine” for the following purpose:
“[T]o prohibit the Defendant or his counsel from testifying or eliciting testimony regarding alleged admissions made by one David Fors pertaining to the commission of the Aggravated Robbery offense for which the Defendant is charged. . . .
“It is therefore respectfully requested from the Court that an Order in Limine be issued restraining the Defendant or any witness called on his behalf from offering any testimony concerning any alleged association by David Fors with the commission of the offense for which the Defendant is charged and the counsel for the Defendant by [sic] specifically ordered and held responsible by this Court for any testimony so offered without the subpoenaed presence of David Fors in the Reno County Courthouse during the conduct of the trial.”
The motion was granted and the trial proceeded.
Before we consider the merits of this point we feel that some general discussion may be helpful. The motion in limine is recognized in Kansas. See Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 200, 563 P.2d 467 (1977). Judging from the records that have appeared in this court the motion in limine is being used with greater and greater frequency. Yet, despite the frequent use of the motion, very little appears in our case law concerning its nature, purpose, and proper use.
Black’s Law Dictionary, p. 896 (4th ed. rev. 1968) defines in limine as: “On or at the threshold; at the very beginning; preliminarily.” This term has been loosely used in practice to designate almost any motion filed and to be ruled on before trial. In recent years the use of the motion in limine has gained general acceptance. See Annot., 63 A.L.R.3d 311 (1975). The phrase, motion in limine, is not found in the procedural statutes of Kansas. See K.S.A. 60-207 and K.S.A. 22-3208, which relate to pleadings and motions generally. Authority for the use of the motion in limine in many states is found in “the inherent power of the trial court to exclude or admit evidence.” Burras v. Silhavy, 155 Ind. App. 558, 563, 293 N.E.2d 794 (1973). Other courts have found authority for the motion in procedural rules such as Fed. R. Civ. Proc. 16 (6) which gives the federal trial courts broad authority to conduct pretrial conferences. See Aley v. Great Atlantic & Pacific Tea Co., 211 F. Supp. 500, 503 (W.D. Mo 1962).
In Kansas our trial courts in both criminal and civil cases have broad authority to conduct pretrial conferences to consider such matters as will promote a fair and expeditious trial, and to consider various matters as may aid in the disposition of the action. See K.S.A. 22-3217 and K.S.A. 60-216. The Kansas Code of Civil Procedure was patterned after the federal rules. There can be little doubt that the trial courts in Kansas have authority to entertain a motion in limine by reason of the pretrial authority conferred by statute.
The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel. It is generally agreed a protective order issued on a motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) The mere offer of or statements made during trial concerning the material will tend to prejudice the jury. See Rothblatt & Leroy, The Motion in Limine in Criminal Trials: A Technique for the Pretrial Exclusion of Prejudicial Evidence, 60 Kentucky L. J. 611, 621 (1972); and Davis, The Motion in Limine — A Neglected Trial Technique, 5 Washburn L. J. 232 (1966). The material to which the motion in limine is addressed may be either inadmissible under an established rule of evidence, such as the hearsay rule, or it may be excludable under a statute, such as K.S.A. 60-445, because its probative value is substantially outweighed by its tendency to prejudice.
As previously mentioned the primary purpose of the motion in limine is to prevent prejudice during trial. Its use should be strictly limited to accomplish that purpose. It must not be used to choke off a valid defense in a criminal action. See State v. Bradley, 223 Kan. 710, 713, 576 P.2d 647 (1978), where this court found that the motion in limine had been used to exclude relevant and material information pertaining to the defense, and that defendant’s fundamental right to a fair trial had been violated.
In Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d 198, 201 (Iowa 1971), that court said:
“We deem this appeal an appropriate one in which to say that cases are coming to this court revealing questionable use of the motion in limine — questionable in the manner of its use or in its use at all. The motion is a drastic one, preventing a party as it does from presenting his evidence in the usual way. Its use should be exceptional rather than general.”
We wish to add a word of caution against the overuse of the motion in limine. To protect against prejudice and to assure the parties a fair trial, certain guidelines should be observed. The following guidelines for use of the motion in limine should be kept in mind.
It is important that a proper written motion be filed to pinpoint the material or evidence to be protected against. This is necessary together with an order of the court setting forth the specific basis for exclusion or admission. A mistrial or reversible error on appeal may be avoided by having a proper motion and order drawn and filed. See Proper v. Mowry, 90 N.M. 710, 568 P.2d 236 (1977). We repeat, it is important for the motion to state the specific matter that the movant believes to be inadmissible and prejudicial. The motion should not be general in scope. See Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d at 201.
When entering the order it should be temporary in nature. It is entered before trial and no one knows exactly what will turn up later during the trial. When a protective order has once been granted the offer of proof during the course of the trial must be made in the absence of the jury. It is possible events during the trial, bearing directly on questions of relevance, may support a change in the protective order. See Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974). There are instances when a motion in limine may be taken under advisement, reserving the right to rule upon the matter when it arises at trial. See City of Indianapolis, Dept. of Met. Dev. v. Heeter, _ Ind. App. _, 355 N.E.2d 429 (1976). Care must be exercised during trial because prejudice may be implanted in the minds of the jurors by asking unanswered questions and by making statements which are subsequently stricken. When such a motion is taken under advisement by the court the matter should not be raised except in the absence of the jury.
We remind attorneys in this regard that under the Rules of Professional Responsibility (DR 7-106[C][l][2]) a lawyer shall not “[s]tate or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence,” nor “[a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.” 224 Kan. cv.
The order resulting from a motion in limine may prohibit reference during trial proceedings to material which is irrelevant or prejudicial to a fair trial. The order is a temporary protective order. It is subject to change during the trial; and to predicate error thereon it will be necessary to again present the material or proffer the evidence during trial on motion to reconsider. Annot 63 A.L.R.3d 311 (1975).
The order in limine granted in this case appears to have been a permanent order excluding testimony, rather than a temporary protective order directing counsel and the witnesses to make no mention of it without first gaining approval of the court outside the hearing of the jury. This, however, standing by itself, is not reversible error since appellant was not prejudiced by the granting of the motion if the evidence was properly excluded. Thus the issue in this case is whether the evidence proffered by the appellant during trial should have been admitted. Counsel for appellant made the following proffer at trial:
“[T]he evidence would show, first of all that Mr. Fors has a striking resemblance to the Defendant, these people could very well pass for twins. We have photographs available that would indicate that it would be corrobrated [sic] and verified that fact.
“Secondly the evidence wonld show as toMr.Fots,tbat he lived with the young lady, and that that young lady would testify that .during the time that they were living together, he admitted to her that he had committed the crime. The evidence would further show as to Mr. Fors, if we were allowed to offer testimony, that he resided near the liquor store, in fact in the back of it, and had frequented this liquor store on other occasions and; fourthly, the evidence would show that Mr. Fors worked at Hamilton Roofing at the same time that Mr. Peterson did and as the Court has heard, at this point Mr. Peterson’s evidence was based on the fact that he had worked with this guy and recognized him from work, and I think the completion of all those factors makes it very crucial that evidence — the jury hears that evidence. Because at this point, without that evidence, the jury is put in a position of having to disbelieve the State’s witnesses or disbelieve the witnesses of the Defendant, because the only thing that he could offer at this point is alibi and I think that fact, that we have somebody else, the fact that Mrs. Stewart has been robbed three times, the third time after this man was incarcerated, makes evidence concerning Mr. Fors very relevant and one fifth item that I forgot to mention, we also have, we would have a gun that came out of the hand of Mr. Fors, we have a witness come in who purchased this gun from him, who fits the description of the gun that Mrs. Stewart eventually described on the stand.”
Appellee first argues that to preserve the issue for appeal appellant was required to produce the testimony by affidavit, deposition, or oral testimony. In support of this position appellee cites K.S.A. 60-259(g) which deals with new trials under the code of civil procedure. This section is inapplicable in the present case. The applicable statutory section is K.S.A. 60-405 of the rules of evidence which reads as follows:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
Appellant preserved the issue for appeal when he made known to the trial court the substance of the proposed evidence.
We now return to the question of admissibility. The court orally granted the order on the record. In doing so it stated:
“Neither the defendant or his Counsel will directly or indirectly by hearsay evidence, try to show an admission of the commission of the third party that he committed the crime with which the defendant is charged. Defense Counsel will also instruct his witnesses in advance not to volunteer such information on this general subject. ” Emphasis supplied.
Counsel for defendant thereupon asked for clarification of the limitation being imposed:
“MR. TAYLOR: The other point is, I’m trying to decide how much, how much limit is put upon us as to the defendant because Judge, there is no question that as I indicated, one of the State’s witnesses in the preliminary testified upon cross-examination by myself and used as a basis of being able to identify the defendant, that he had worked with him at the at Hamilton Roofing Company, and we are prepared to bring into this Court personnel from the roofing company to show that Peterson worked out there, the State’s witness, and the person that he worked with was David Fors. And apparently if he was basing his identification on that, then he is identifying David Fors. Now we’ve got a right to cross-examine, Judge, and I think if we’re not allowed to deal with that, then Your Honor is taking away our tool of cross-examination. We have already got a witness who based his identification on that and we should be allowed to come into the Court with that evidence and cross-examine on it.
“THE COURT: I read you four Supreme Court cases, I want them followed, that’s all.
“MR. TAYLOR: Are you saying we cannot offer that witness, then, to show, to rebut—
“THE COURT: Anybody else, that is right. I read you that, that is the first case. You can’t show it. Somebody else, where it’s direct eye-ball evidence. If the State’s evidence is circumstantial, then you may, but that’s what I’ve been reading to you.”
Again during the trial counsel attempted to obtain clarification as to the extent of the prohibition. Counsel for appellant pointed out he had attempted to subpoena David Fors at least a month before trial, had talked to the officials about where he might be located, and yet Fors was never served nor made available to testify at the trial.
In explaining the extent of the protective order during the trial the court stated:
“THE COURT: Well, I gave my ruling on the hearsay evidence part and I also gave you specific Supreme Court citations on the general rule about admission of evidence that somebody else did the crime, where the State offers direct evidence to the contrary and I still think those Supreme Court rules are applicapable [sic] and also, wait until after the trial has started, the State has finished their evidence, partly through the Defendant’s, to make this motion, I have given several weeks advance notice of the trial, and they wanted to find Mr. Fors, there is no showing of when they would find Mr. Fors, and how long we would delay it, I’m going to overrule the motion and call the jury in.”
The cases cited and relied on by the trial court are State v. Potts, 205 Kan. 42, 468 P.2d 74 (1970); State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970); and State v. Calvert, 211 Kan. 174, 505 P.2d 1110 (1973). The cases cited are authority for excluding evidence which is not directly relevant to prove the guilt or innocence of the defendant. They hold when the State relies on direct rather than circumstantial evidence for conviction, evidence offered by defendant to indicate a possible motive of someone other than the defendant to commit the crime is irrelevant absent other evidence to connect such third party with the crime. These cases are not persuasive under the facts of our present case. Here we have an admission by a third party that he committed the crime for which defendant is charged.
The proffered evidence in this case can be divided into two categories. The first was the available testimony of Robin Gresham who lived with David Fors during the time when the robbery occurred. It was alleged that she would testify that Fors told her that he, and not the defendant, had committed the robbery. This is in the nature of hearsay and to be admissible would have to come under one of the exceptions contained in the hearsay statute, K.S.A. 60-460.
The second type of evidence was not hearsay. It was both direct and circumstantial evidence in support of defendant’s contention that Fors committed the crime. It consisted of photo graphs to show that Fors and the defendant were quite similar in appearance and might be mistaken for each other. Testimony would be offered that both Fors and the defendant worked for the roofing company at the same time, and that the State’s identification witness, Peterson, might very well have gotten the identities of the two men mixed up. Further testimony was proffered that Fors owned and sold a handgun similar to the one used in the robbery. It was sold shortly after the crime was committed. Fors lived in the neighborhood of the liquor store. The liquor store had been robbed both before and after the May 10, 1978, robbery.
This latter evidence was of such a nature that its relevancy somewhat depended on the admission of the declaration against penal interest of Fors. If the declaration of Fors that he committed the crime was admitted at the trial there would then be little doubt that this additional testimony was relevant. So we turn to the question of the declaration of Fors that he committed the robbery of the liquor store.
Appellant contends the testimony falls within the exception in K.S.A. 60-460(j), declarations against interest. The statutory exception in pertinent part reads:
“(?) Declarations against interest. Subject to the limitations of exception (f) [requirements of admissible confession], a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected, the declarant to civil or criminal liability . . . that a reasonable man in the declarant’s position would not have made the statement unless he or she believed it to be true.” Emphasis supplied.
When Kansas adopted the code of civil procedure, effective January 1, 1964, it joined those states which have relaxed the former rule that excluded declarations against penal interest from evidence. See McCormick on Evidence § 278, p. 674 (2d ed. 1978). With the adoption of the code the holding in State v. Bailey, 74 Kan. 873, 87 Pac. 189 (1906), was no longer controlling law.
The former restrictions against admissions against penal interest have been criticized by legal scholars. See 5 Wigmore on Evidence § 1477 (Chadbourn rev. 1974); McCormick on Evidence § 278 (2d ed. 1978). See also the dissent of Mr. Justice Holmes of the United States Supreme Court in Donnelly v. United States, 228 U.S. 243, 277, 57 L.Ed. 820, 33 S.Ct. 449 (1913).
The United States Supreme Court has indicated in Chambers v. Mississippi, 410 U.S. 284, 298, 35 L.Ed.2d 297, 93 S.Ct. 1038 (1973), that under certain conditions admission of such evidence on behalf of a criminal defendant may be required by due process. Kansas adopted the exception by statute, and the exception was applied later in State v. Parrish, 205 Kan. 178, 183, 468 P.2d 143 (1970). The statute was adopted nine years before Chambers was handed down by the high court.
It has been called to our attention that certain statements in State v. Wilson, 220 Kan. 341, 346, 552 P.2d 931 (1976), would seem to be authority for excluding declarations against penal interest made by third parties. The declaration was excluded in Wilson on grounds of lack of relevancy and not on the general rule of exclusion. The statement in Wilson is overbroad and is disapproved since it recited the general rule of exclusion but failed to mention the statutory exception contained in K.S.A. 60-460(j).
Before a hearsay statement should be admitted as a declaration against penal interest under K.S.A. 60-460(j), the statement must in fact have been made against the declarant’s interest so as to have the potential for subjecting the declarant to criminal prosecution at the time of its utterance. See Note, Declarations Against Penal Interest: Standards of Admissibility Under an Emerging Majority Rule, 56 BostonL. Rev. 148,156 (1976). K.S.A. 60-460(j) contemplates that the judge, using judicial discretion, find the statement “was at the time of the assertion so far contrary” to the declarant’s penal interest “that a reasonable man in the declarant’s position would not have made the statement unless he or she believed it to be true.” In addition, if the declarant is not present at trial it must appear a diligent effort was made to locate the declarant and that he is unavailable. Originally in order for such evidence to be admissible it had to be shown the declarant was dead. Now in those jurisdictions recognizing the rule it is generally sufficient to show the declarant is unavailable. 5 Wig-more on Evidence § 1476, p. 350 (Chadbourn rev. 1974).
A trial court does have discretion to exclude a declaration against penal interest when the required finding cannot justifiably be made under the circumstances surrounding the making of the declaration. However, the trial court in this case did not consider the statement as a declaration against penal interest. In the present case all requirements would seem to be present. The declaration of Fors was made to a friend at a time at which he could have been prosecuted for the crime. The statute of limitations had not run on the offense. No reason appears why Fors would want to falsely admit guilt. This is not a case where an inmate in a penal institution comes forward to take the entire blame for a crime, or where accomplices are involved. Under the present circumstances a reasonable man in the position of David Fors with no previous connection with either the crime or the-defendant would not be likely to make such a statement unless it were true. Some credence must attend the declaration if, as proffered by appellant’s counsel, there was evidence independent of the declaration which would further support a belief that David Fors committed the crime. Here evidence was alleged to be available that Fors and the appellant were “look-a-likes,” that Fors resided near the liquor store that was robbed, that Fors sold a gun similar to the one used in the robbery sometime after the crime was committed, and that Fors had lived with a Kathy Gore who owned an orange Pinto automobile similar to the getaway car used in the robbery.
The indicia of reliability of the declaration against penal interest was sufficient to justify the admission of the declaration as an exception to the hearsay rule. The court erred in failing to consider the proffered evidence as a declaration against penal interest. Without such evidence to support the defense of alibi the defense was severely hampered. The other evidence proffered by appellant concerning Fors’ possible guilt was relevant evidence. Some of this proffered evidence attacked the credibility of an identification witness whose credibility was crucial to the State’s case. The appellant should have been permitted to elicit such testimony in response to the testimony of Peterson, the State’s main identification witness. The court also erred in excluding this evidence.
One remaining point may arise during a second trial and we will comment on it. In sentencing appellant the trial court applied the mandatory firearms sentencing statute, K.S.A. 1978 Supp. 21-4618. In doing so the trial court simply stated, “For the record, and from the record of trial, the Court will find that a firearm was used in this particular case.” The trial court failed to find it was the defendant who used a firearm in this particular case.
In State v. Mullins, 223 Kan. 798, Syl. ¶ 3, 577 P.2d 51 (1978), we held that whether a defendant used a firearm in the commission of an Article 34 offense is a matter to be determined by the trial judge at the time of sentencing under K.S.A. 1977 Supp. 21-4618. Mullins was followed in State v. McCarty, 224 Kan. 179, 180, 578 P.2d 274 (1978). The finding of the trial court in the present case leaves something to be desired. The statement does not specify who used a firearm. The finding of the trial judge as to whether a defendant used a firearm in the commission of an Article 34 offense is to be made at the time of sentencing under K.S.A. 1978 Supp. 21-4618.
Other points raised on appeal are not likely to arise at a second trial and need not be discussed. The judgment and conviction are reversed and the case is remanded for a new trial.
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The opinion of the court was delivered by
Miller, J.:
The trial court and the Court of Appeals held that this workmen’s compensation claim was not barred by the statute of limitations. Childress v. Childress Painting Co., 3 Kan. App. 2d 135, 590 P.2d 1093 (1979). We granted review. The sole issue is whether the claim is barred by K.S.A. 1978 Supp. 44-534(fe).
The facts are fully set forth in the majority opinion of the Court of Appeals, and need not be restated here in detail. A workman was accidentally killed in the course of his employment on March 27,1974. His employer had notice of the accident, but did not file a report of the accident until the 79th day after the accident. Within 6 months of the accident, the workman’s widow com menced a proceeding before the director by serving a claim for compensation on the employer, but she did not file an application for a hearing until June 30, 1977, which date is more than three years after the accident and more than three years after the employer filed a report of the accident. Although it has nothing to do with this proceeding, the claimant also made claim under the Missouri Workmen’s Compensation Act, since the contract of employment was made in Missouri; that proceeding is still pending.
The statutes in effect at the time of the accident were K.S.A. 44-510e and K.S.A. 44-557. The pertinent provisions of those statutes, slightly but not materially modified, are now contained in K.S.A. 1978 Supp. 44-534(b) and K.S.A. 1978 Supp. 44-557. The Court of Appeals referred to the current statutes for convenience and clarity; we do likewise. The statutes read:
“No proceeding for compensation shall be maintained under the workmen’s compensation act unless an application for a hearing is on file in the office of the director within three (3) years of the date of the accident or within two (2) years of the date of the last payment of compensation, whichever is later.” K.S.A. 1978 Supp. 44-534{b).
“(a) It is hereby made the duty of every employer to make or cause to be made a report to the director of any accident, or claimed or alleged accident, to any employee which occurs in the course of his employment and of which the employer or his foreman has knowledge, which report shall be made upon a form to be prepared by the director, within twenty-eight (28) days, after the receipt of such knowledge ....
“(c) No limitation of time in the workmen’s compensation act shall begin to run unless a report of the accident as provided in this section has been filed at the office of the director if the injured workman shall have given his notice of accident as provided by K.S.A. 44-520, as amended: Provided, That any proceeding for compensation for any such injury or death, where report of the accident has not been filed, must be commenced before the director within one (1) year from the date of the accident . . . .” K.S.A. 1978 Supp. 44-557.
The claimant has contended throughout this proceeding that since the employer failed to file a report within 28 days as required by § 44-557(a), the three-year limitation established by § 44-534(b) is inapplicable. The trial court and the Court of Appeals so held. The Court of Appeals said: “The statute [§ 44-557] broadly abolishes all time limitations when the employer fails to file his accident report within twenty-eight days of being notified of the accident.” 3 Kan. App. 2d at 140. (Emphasis supplied.) We do not so read the statute.
The employer, on the other hand, contends that § 44-557(c) only suspends the three-year statute of limitations so long as the employer fails to file an accident report; but that once a report is filed, the limitation commences to run; that in this case it ran and expired before the request for a hearing was filed; and that the claim is therefore barred. The examiner took this approach.
Our earlier cases are not helpful in determining the issue before us. Ricker v. Yellow Transit Freight Lines, Inc., 191 Kan. 151, 379 P.2d 279 (1963) held only that service of a written claim by an employee upon an employer constitutes the commencement of a proceeding for compensation before the Workmen’s Compensation Director, and thus a written demand for compensation served on the employer on May 3, 1961, was timely under § 44-557(c). The accident occurred on May 13, 1960, and the employer did not file an accident report until May 5, 1961. Asp v. McPherson County Highway Dept., 192 Kan. 444, 388 P.2d 652 (1964) determined that the one-year limitation for commencing proceedings, contained in the proviso of § 44-557(c), was not extended by the fáilure of the employer to file an accident report.
In Almendarez v. Wilson & Co., 188 Kan. 303, 362 P.2d 1 (1961), we approved as timely a claim filed some eight months after the injury, the employer having failed to file an accident report as required by § 44-557. We discussed the reason for the extension of time (from the then 180 days to one year) in which to file a claim; but that discussion is not helpful or persuasive here.
Section 44-534(b) is a three-year statute of limitation contained within the Kansas Workmen’s Compensation Act. § 44-557(c) prevents the limitation of time contained in § 44-534(b) from beginning to run “unless a report of the accident as provided in this section [44-557] has been filed.”
“A report of the accident as provided in this section” clearly refers to a “report . . . upon a form . . . prepared by the director.” § 44-557(c) says “unless a report ... as provided in this section has been filed.” (Emphasis supplied.) The Court of Appeals’ interpretation, it seems to us, would read the language as saying “unless a report . . . has been filed as required in this section.”
§ 44-557(c) prevents the limitation period from beginning to run, and thus delays the commencement of the time limitation; it does not abolish the three-year limitation period but merely suspends the start of the period when an accident report is not timely filed. If the legislature had wished to abolish the period of limitation, it could have done so; it did not. Upon examination of the language employed in K.S.A. 1978 Supp. 44-557(c), we hold that section of the statute merely tolls the limitation provided by § 44-534(b) until such time as an accident report is filed.
Summarizing, we hold that when an accident report is filed by the employer within 28 days of the date of the accident or within 28 days after the employer has knowledge of the accident, then (1) the claimant must commence the proceeding before the director by serving a written claim for compensation on the employer as provided by K.S.A. 1978 Supp. 44-520a, and (2) there must be on file, in the office of the director, an application for a hearing, within 3 years of the date of the accident.
When, however, an accident report is not filed by the employer within 28 days of the date of the accident or within 28 days after the employer has knowledge of the accident, then (1) the claimant must commence the proceeding before the director by serving a written claim for compensation on the employer within one year of the date of the accident, and (2) there must be on file, in the office of the director, an application for a hearing, within three years of the date on which the employer files with the director a report of the accident.
In the case before us, the written claim for compensation was timely served, but no application for a hearing was filed within the three-year period commencing on June 13, 1974, the date on which the employer filed a report of the accident with the director. The application was filed beyond the expiration of the three-year period and came too late.
The judgment of the Court of Appeals is reversed; the judgment of the trial court is reversed; and the proceeding is remanded to the trial court with directions to dismiss the claim.
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The opinion of the court was delivered by
Herd, J.:
Jesse A. Rodriquez was tried and convicted in a joint trial with codefendant Michael McClure of murder in the first degree (K.S.A. 21-3401) for the killing of Loydene Gorda. Each man gave a statement to police out of the presence of the other. The statements were admitted into evidence, with a limiting instruction, over Rodriquez’s objection. From his conviction, Rodriquez appeals. We reverse and remand for a new trial.
On September 19,1978, at approximately 3:30 p.m., the body of a young woman was discovered laying face down in the Kaw River in Wyandotte County. Police officer Randy Murphy was called to the scene. The investigation of the area revealed various articles of clothing, a large pool of blood, several tree limbs and rocks covered with what was later determined to be blood. There were drag marks leading from the pool of blood to the water and the body was found to be brutally beaten about the face and head.
The investigation pieced together the events leading to the murder. It disclosed two men had met the victim, later identified as Loydene Gorda, at a bar by the name of Andy’s Place, located in Kansas City, Kansas. The owner of the bar confirmed that Ms. Gorda had left his establishment between 10:30 and 11:00 p.m., the previous night, in the company of a man named Michael McClure and an unknown Mexican male. A pickup order was issued for the two men with a description of the car they were seen driving.
At noon on September 20, Rodriquez called the police and volunteered to come in for questioning that afternoon. At 3:30 p.m. Rodriquez and McClure appeared at police headquarters where each made a statement out of the presence of the other.
McClure’s statement related that he and Rodriquez had picked up Ms. Gorda at Andy’s Place between 10:00 and 11:00 p.m. on September 18. They left the bar with two six-packs of beer and took Rodriquez’s 1969 or 1970 black over yellow Ford LTD, went by Ms. Gorda’s house, then drove to a secluded area on a dirt road toward Holliday Drive and stopped on a spillway. The three got out of the car and walked up the road at which time the victim removed her clothes and had intercourse, willingly, with both men. McClure then stated he “got scared that she was going to say we raped her” so he hit her and then Rodriquez hit her, at which time she broke away and began running. Rodriquez chased and caught her and McClure hit Ms. Gorda with a rock “a couple of times.” He stated Rodriquez also hit her with a rock. Thereafter, the woman’s body slid down a slope towards the road. The two men dragged the body down an embankment and threw it in the river. He stated they then returned to the car and drove to appellant’s mother’s house where they lived.
Appellant Rodriquez’s statement did not totally agree with that of McClure’s. Rodriquez stated they met Dee Gorda at Skip’s Bar, talked and drank beer for awhile, then left in his 1970 Ford LTD. They went “riding around”, picked up a hitchhiker and took him home and then drove down by the river and parked by the spillway. He stated McClure went walking while he and Ms. Gorda had intercourse in the back seat of the car. McClure returned and took Ms. Gorda for a walk down the road. They had been gone for about an hour and a half when he heard a woman’s scream. He ran toward the screams and found McClure had hit the victim in the head with a brick. Rodriquez stated McClure said he had hit her because she scratched him. McClure asked him to help him, but appellant refused and returned to the car. McClure followed him to the car and asked him to help throw Ms. Gorda into the river. Rodriquez agreed and the two dragged the body to the embankment and threw it into the river. Defendant stated he didn’t know whether Ms. Gorda was dead when he helped dispose of the body.
After the two men gave statements to the police, they were arrested and charged with first degree murder. Both defendants filed motions to suppress their statements and Rodriquez filed a motion to sever his trial from McClure’s. The motions were heard on November 30, 1978, and the court denied the motion to suppress defendant’s own statement. The trial court did not rule on the motion to suppress the codefendant’s statement or the motion to sever. At trial, Rodriquez withdrew his motion for severance and agreed to a joint trial with McClure. After the jury was impanelled, the appellant renewed his motion to suppress the statement of his codefendant on the grounds it was hearsay and denied him his Sixth Amendment right to confrontation. The trial court denied the motion ruling the statement was cumulative to appellant’s own statement and therefore harmless error with a limiting instruction to the jury. McClure’s statement was admitted in evidence over Rodriquez’s objection and an instruction was given limiting its application to McClure. Neither defendant testified..
The jury convicted both McClure and Rodriquez of first degree murder and Rodriquez appeals.
Appellant asserts as his first issue that the admission of McClure’s nonjudicial statement into evidence denied him his constitutional right to confrontation, guaranteed by the Sixth Amendment of the U. S. Constitution. Rodriquez contends McClure’s inculpatory statement, taken out of his presence, and admitted into evidence at their joint trial where McClure didn’t testify, denied him his right to confront the witness and that the limiting instruction to the jury did not erase the damage. The issue raises a question under Bruton v. United States, 391, U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968). There, the court held a defendant is deprived of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution where the extrajudicial statement of a non-testifying codefendant inculpating the defendant is admitted and where the codefendant is not available for cross-examination, although an instruction is given limiting the use of the confession to the codefendant.
The Bruton rule has been well recognized by this court, State v. Mims, 220 Kan. 726, 733, 556 P.2d 387 (1976), and was most recently applied in State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978); State v. McQueen & Hardyway, 224 Kan. 420, 582 P.2d 251 (1978); State v. Edwards, 224 Kan. 266, 579 P.2d 1209 (1978); and State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978).
In an action described by our court as a “softening” of the Bruton rule (State v. Sullivan & Sullivan, 224 Kan. at 113), the U. S. Supreme Court found a violation of the rule to be harmless error beyond a reasonable doubt where the codefendant’s statement is only cumulative and other evidence overwhelmingly proves defendant’s guilt. Harrington v. California, 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726 (1969). Accord, State v. Mims, 220 Kan. 726.
The most recent pronouncement by the U. S. Supreme Court regarding Bruton is found in Parker v. Randolph, 442 U.S. 62, 73, 60 L.Ed.2d 713, 99 S.Ct. 2132 (1979). The Court held the Bruton rule is not violated if the defendant who complains of the admission of the codefendant’s statement has himself confessed to the crime:
“The right protected by Bruton — the ‘constitutional right of cross-examination,’ [citation omitted] has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence.”
The Court held the “admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.” Parker v. Randolph, 442 U.S. at 75.
The Court’s holding regarding the doctrine of interlocking confessions is at odds with statements in State v. Sullivan & Sullivan, where we found the doctrine of interlocking confes sions was not an exception to Bruton but was based on the harmless error rule set forth in Harrington v. California, 395 U.S. 250. The majority opinion in Parker, however, was joined by only four justices. Three justices dissented, one did not participate and one concurred in the result reached by the majority but rejected the law set forth in the opinion. In his concurring opinion, Justice Blackmun stated:
“I would be unwilling to depart from the traditional harmless error analysis in the straightforward Bruton error situation. Neither would I depart from the harmless error approach in interlocking confession cases. . . . The two confessions may interlock in part only. Or they may cover only a portion of the events in issue at the trial. Although two interlocking confessions may not be internally inconsistent, one may go far beyond the other in implicating the confessor’s codefendant. In such circumstances, the admission of the confession of the codefendant who does not take the stand could very well serve to prejudice the defendant who is incriminated by the confession, notwithstanding that the defendant’s own confession is, to an extent, interlocking. I fully recognize that in most interlocking confession cases, any error in admitting the confession of a nontestifying codefendant will be harmless beyond a reasonable doubt. Even so, I would not adopt a rigid per se rule that forecloses a court from weighing all the circumstances in order to determine whether the defendant in fact was unfairly prejudiced by the admission of even an interlocking confession.” Parker v. Randolph, 442 U.S. at 78-9.
We find the Supreme Court is equally divided as to the law regarding interlocking confessions and we are not constrained to view the opinion as precedential. Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972). See also Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 73, 53 L.Ed.2d 113, 97 S.Ct. 2264 (1977).
Applying the existing law to the facts of this case, we find reversible error. Here, each codefendant made a statement. McClure’s statement confessed his own guilt but also implicated Rodriquez. Rodriquez confessed he was present and helped throw the victim in the river but specifically denied hitting her. Although some evidence was admitted attempting to show the victim could have died by drowning, it is generally uncontroverted that the cause of death was from loss of blood as a result of the beating. The information charges Rodriquez murdered Ms. Gorda by beating her with rocks. The only evidence before the jury showing Rodriquez’s participation in the killing is McClure’s extrajudicial statement and that statement is devastating to Rodriquez’s case. Its admission by the trial court, even with a limiting instruction, cannot, by any stretch of the imagination, be deemed harmless error beyond a reasonable doubt. McClure was not available for cross-examination and Rodriquez was denied his right of confrontation. The error is of such magnitude it requires reversal and a new trial.
As a footnote to this issue, the State argues appellant waived his right to raise the constitutional question by withdrawing his motion to sever and going to trial in the joint trial. There is no merit to the argument. Appellant had the right to assume only admissible evidence would be admitted in the joint trial. He did not waive his right to object to hearsay evidence or the lack of confrontation in withdrawing his objection to a joint trial. It was appellant’s duty to devise the strategy most favorable to his defense within the ethical rules. This, he did. The State’s argument is without merit.
Next, appellant objects to admitting into evidence photographs of the battered body of the victim, claiming they were merely shocking and not relevant or material to matters at issue. The oft-stated rule regarding the admission of photographs was recently set forth in State v. Words, 226 Kan. 59, 61, 592 P.2d 129 (1979):
“Photographs are not rendered inadmissible merely because they are shocking or gruesome if they are relevant and material to the matters at issue. The admission of photographs of a decedent is not error when they are relevant to matters at issue, such as the cause and manner of death, and as an aid in understanding a pathologist’s testimony.”
Here, the photographs were properly used by the pathologist to support his medical opinion of the cause of death and are supportive of the conclusion that death resulted from the head wounds and loss of blood. In addition, while the admitted photographs are graphically illustrative of the brutal murder of Ms. Gorda, they do not compare with the photographs this court found gruesome and repetitive in State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975). The point is without merit.
The final issue urged by appellant is the district court’s denial of his motion for a directed verdict of acquittal at the end of appellee’s case. We have already found that when the McClure statement is eliminated from the prosecution’s case there is no evidence of Rodriquez striking a blow to Ms. Gorda. However, appellant’s own statement placed him in the area in company with the victim at the time of the commission of the crime. He also admits he helped dispose of the body and fled from the scene without making a report or seeking help. Applying the rule that a trial judge in passing on 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 therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt, we conclude guilt beyond a reasonable doubt is a fairly possible result and find the motion was properly denied. State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973); State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374 (1977); Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979).
The judgment is reversed, the sentence set aside, and the case is remanded for a new trial.
Fromme, J., not participating.
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal from a finding of guilty by the trial court of one count of driving while under the influence of intoxicating liquor. K.S.A. 1978 Supp. 8-1567 and K.S.A. 8-1501.
The case was submitted to the trial judge upon an agreed statement of facts wherein the defendant admitted operating a motor vehicle on private property while under the influence of intoxicating liquor. The events took place in a parking lot of a tavern in Lincolnville, Kansas.
The principal issue on appeal is whether the offense of driving while under the influence of intoxicating liquor applies to the operation of a motor vehicle upon private property as opposed to a public highway.
K.S.A. 1978 Supp. 8-1567 provides in pertinent part:
“(a) It is unlawful and punishable as provided in subsection (c) of this section for any person who is under the influence of intoxicating liquor to operate any vehicle within this state.”
K.S.A. 8-1501 provides:
“The provisions of this article relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except:
(a) Where a different place is specifically referred to in a given section; and
(b) The provisions of K.S.A. 8-1566 to 8-1568, inclusive, and the provisions of article 10 of chapter 8 of the Kansas Statutes Annotated, and any acts amendatory thereof, shall apply upon highways and elsewhere throughout the state.”
Appellant contends that the issue is controlled by State v. Bailey, 184 Kan. 704, 339 P.2d 45 (1959). In Bailey the defendant was convicted of driving while under the influence of intoxicating liquor and attacked the admissibility of a blood alcohol test as evidence of intoxication. During the course of the opinion the court stated:
“The offense of unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor is comprised of several elements, each of which must be proved beyond a reasonable doubt by the State. The State must prove at the time in question (1) the defendant was operating the motor vehicle in question; (2) that the instrumentality which the defendant was operating was a motor vehicle within the contemplation of such term in the statute; (3) that the defendant was operating such vehicle on a public highway; and (4) that he was under the influence of intoxicating liquor.” p. 711.
At the time Bailey was decided the pertinent statutes were G.S. 1949, 8-502 and 8-530 which were the predecessors to and essentially the same as our present statutes and provided:
“8-502. Provisions of act refer to vehicles upon the highways; exceptions. The provisions of this act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except: 1. Where a different place is specifically referred to in a given section. 2. The provisions of sections 18 to 32 [8-518 to 8-532], inclusive, shall apply upon highways and elsewhere throughout the state.”
“8-530. Persons under the influence of intoxicating liquor or narcotic drugs; penalties, (a) It is unlawful and punishable as provided in subdivision (b) of this section for any person who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle within this state.”
Appellant argues that the statement in Bailey that the operation of the motor vehicle be upon a public highway is controlling as the legislature did not see fit to change the statutes after our decision in Bailey but reenacted them in essentially the same form. Appellant then points out that all statutes are presumed to be enacted with full knowledge of the existing law and with reference to it. Rogers v. Shanahan, 221 Kan. 221, 225, 565 P.2d 1384 (1976). The fallacy in appellant’s argument is that the language quoted from Bailey was not controlling of that decision and constituted dicta. The issue was not one of public highway versus private property but one of the admissibility of blood alcohol test results as evidence. There was no claim that the offense took place on private property.
In State v. Hall, 1 Kan. App. 2d 730, 573 P.2d 635 (1977), the Court of Appeals stated:
“Under K.S.A. 8-1567, three things must be established: (1) that the defendant operated a vehicle; (2) that the defendant was under the influence of intoxicating liquor while operating the vehicle; and (3) that the operation took place within the jurisdiction of the court.” p. 731.
In Hall the court made no reference to Bailey and therefore the decision would appear to be inconsistent with it. However, again the question of public highway versus private property was not an issue.
With the constantly increasing number of motor vehicles and accidents we recognize the importance of this controversy to public welfare and safety. We will consider this question as one of first impression and take this opportunity to lay the issue to rest.
The specific issue facing the court is the determination of the meaning of “elsewhere throughout the state.” K.S.A. 8-1501 by its terms is written into and must be considered as a part of K.S.A. 1978 Supp. 8-1567. See Klaus v. Goetz, 211 Kan. 126, 131, 505 P.2d 726 (1973).
Our statutes regulating traffic are based upon the Uniform Act Regulating Traffic on Highways.
K.S.A. 8-2203 provides:
“This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.”
Seven jurisdictions having similar legislation have had the opportunity to address the public versus private property controversy. All have held that statutes of this type apply to private property. State v. Hollobaugh, 297 A.2d 395 (Del. Super. 1972) (Delaware); People v. Erickson, 108 Ill. App. 2d 142, 246 N.E.2d 457 (1969) (Illinois); Seattle v. Wright, 72 Wash. 2d 556, 433 P.2d 906 (1967) (Washington); State v. Valeu, 257 Iowa 867, 134 N.W.2d 911 (1965) (Iowa); Cook v. State, 220 Ga. 463, 139 S.E.2d 383 (1964) (Georgia); State v. Carroll, 225 Minn. 384, 31 N.W.2d 44 (1948) (Minnesota); State v. Cormier, 141 Me. 307, 43 A.2d 819 (1945) (Maine).
In People v. Guynn, 33 Ill. App. 3d 736, 338 N.E.2d 239 (1975), the “elsewhere” language was construed to encompass all areas of the state, public or private:
“[4] We conclude the words “elsewhere throughout the State” encompass all areas of the State, public or private. While this issue is one of first impression in Illinois, in reaching this conclusion, we find support in the courts of other States where the statutory language is identical (See: e.g.: State v. Carroll (1948), 225 Minn. 384, 31 N.W.2d 44; State v. Valeu (1965), 257 Iowa 867, 134 N.W.2d 911; Cook v. State (1964), 220 Ga. 463, 139 S.E.2d 383; Seattle v. Wright (1967), 72 Wash. 2d 556, 433 P.2d 906). The cases referred to recognize that the dangerous menace posed by the intoxicated driver is not ameliorated by the nature of the property on which he is driving or in control of a motor vehicle (See Annot., 29 A.L.R.3d 938, notably at 949 et seq. [1970]).” p. 739.
Appellant argues that the word “elsewhere” is not as broad as “anywhere” and cites cases, principally from Texas, where the courts have limited the application of language similar to that contained in our statutes to public or semi-public areas. None of these cases, however, involved the precise wording of our statutes and are distinguishable on that basis.
Various definitions of the word “elsewhere” may be found. Black’s Law Dictionary 613 (4th ed. rev. 1968), defines the term:
“In another place; in any other place.”
Webster’s Third New International Dictionary 737 (1967), states:
“adv. in or to some or any other place.”
In Bankson v. Accident & Casualty Co., 244 Ala. 371, 13 So.2d 398 (1943), a contractor’s liability policy provided that the insurer would defend any suit arising out of operations on the described premises or “elsewhere in the state.” The court construed the term broadly to mean the same as “anywhere.”
In People v. Stansberry, 242 Cal. App. 2d 199, 51 Cal. Rptr. 403 (1966), the statute provided that the driver of any automobile involved in a property damage accident should stop at the scene of the accident. This statute was governed by a provision that all accident statutes apply upon highways and “elsewhere” throughout the state. The court held “elsewhere” included strictly private property. For additional citations to cases defining the term in both a broad and a limited fashion, see generally, 14 Words and Phrases 361.
We conclude that the words “elsewhere throughout the state” in K.S.A. 8-1501 mean at any other place within the state including strictly private property as well as public highways, public property and private property open to the public. Any language to the contrary in State v. Bailey, 184 Kan. 704, is expressly overruled and the statement of the elements of the offense of driving while under the influence of intoxicating liquor found in State v. Hall, 1 Kan. App. 2d 730, Syl. ¶[ 1, is approved.
Appellant’s next point on appeal is that K.S.A. 1978 Supp. 8-1567 and K.S.A. 8-1501 are unconstitutional as violating the due process provisions of the federal and state constitutions and are unconstitutionally vague and indefinite.
Appellee contends that these issues were not raised in the trial court and should not be considered for the first time upon appeal. State v. Ervin, 223 Kan. 201, 573 P.2d 600 (1977); State v. Ambler, 220 Kan. 560, 552 P.2d 896 (1976); State v. Estes, 216 Kan. 382, 532 P.2d 1283 (1975). While defendant, in a memorandum brief in the trial court makes a passing reference to the statutes as having “obvious constitutional deficiencies” he prefaces this remark with'the statement “[t]he only issue thence to be resolved is whether K.S.A. 8-1567 applies to private property.” The constitutional issue was neither raised before or considered by the trial court and is not properly before this court for review.
The judgment is affirmed.
Schroeder, C.J., dissenting.
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Per Curiam:
This appeal is from a judgment denying equitable relief in the form of cancellation of a public construction bid and the discharge and release of the bid bond.
The only issue before us is whether the successful bidder for a public construction contract will be granted equitable relief by way of cancellation of the construction bid and the discharge and release of its bid bond because of a unilateral error in calculating costs.
On March 4, 1976, Rural Water District No. 4, Neosho County, Kansas, issued a notice to contractors that bids would be received for the construction of a water distribution and storage system. We are concerned here only with the water distribution system. The bids were to be accompanied by a check or bid bond in the amount of 5% of the total bid. The stated purpose of the bid bond was to guarantee that the contractor would enter into a construction contract within ten days of the award of the contract.
The plaintiff company submitted its bid and a bid bond in the amount of $40,637.65. It might be explained here that the plaintiff company is a family corporation consisting of Glen Anderson and his five children. Steve Anderson, the twenty-seven-year-old son of Glen Anderson, was assistant general manager. The bid submitted by plaintiff was prepared by Steve Anderson.
The bids were opened on March 24, 1976. The plaintiff’s bid was $812,753.00. This was $169,079.50 lower than the next lowest bid and $486,154.50 lower than the defendant’s consulting engineer’s estimate. Because of the wide variation between the low bidder and the second low bidder all parties concerned suspected an error. Glen and Steve Anderson spent two or three days going through the plans and cost estimate sheets looking for an error.
The error was found on March 27, 1976. The chief error had been made in transferring the calculated amount of shot rock from the adding machine tape to the bid project estimate sheets. Only 6,000 lineal feet of the 36,000 lineal feet had been carried over to the estimate sheets. Glen Anderson testified this was the sole purpose for requesting withdrawal of the bid. On March 29, 1976, defendant’s consulting engineer talked to Glen Anderson about the bid. Glen Anderson informed the defendant’s consulting engineer that an error had been made and he wished to withdraw the bid. No mention was made of the nature of the error.
On March 31, 1976, the plaintiff sent a letter to the defendant requesting withdrawal of the bid on the basis of gross error in cost estimating. Glen Anderson testified that he did not use the term “mathematical error” in the letter because he did not know the type of error was important. The defendant, the Rural Water District Board, voted to accept appellant’s bid on April 21, 1976. Glen Anderson met with the board on May 4,1976, and explained the exact nature of the error. At the meeting the plaintiff rejected the contract.
Plaintiff brought action in the district court, alleging a mistake in the form of a clerical error in the computation of the quantity of rock to be excavated and prayed that the acceptance of the bid be cancelled, its bid be rescinded and cancelled, and its bid bond be cancelled.
The district court in memorandum opinion stated as follows:
“The controlling question is whether a bidder on a construction contract can be relieved from obligation under his bid bond for his unilateral mistake in figuring his bid. No Kansas decision has been turned up and the authorities in other states are divided, probably the majority rule being that he can.
“As simple contract law the Kansas Supreme Court has consistently held that unilateral mistake will not excuse non performance.”
The trial court followed the Kansas general rule that a unilateral mistake will not excuse nonperformance of a contract and denied the plaintiff any relief. The plaintiff has appealed.
Before we proceed with a discussion of the law we should be clear on the issue before us. There has been a great deal of confusion in the decisions because of the failure to distinguish between the contract involved in the bid and the construction contract which would result from the bid contract. The appellee is not attempting to hold the plaintiff to a construction contract which because of errors might result in a tremendous loss of an unknown amount. The appellee is holding appellant to his bid contract under which he can forfeit the bid bond in a known amount and be relieved of the obligations of the construction contract.
We have no Kansas case dealing with the affect of an error on a bid contract. However, we see no reason why our cases announcing the rule that in the absence of fraud a unilateral mistake will not excuse the nonperformance of a contract should not apply. See Snider v. Marple, 168 Kan. 459, 213 P.2d 984 (1950); Green v. Insurance Co., 112 Kan. 50, 209 Pac. 670 (1922); Commission Co. v. Mowery, 99 Kan. 389, 161 Pac. 634 (1916), modified 99 Kan. 399 (1917); Griffin v. O’Neil, 48 Kan. 117, 29 Pac. 143 (1892).
The courts of other states are divided on the question. Appellant calls our attention to the general rule set forth in 52 A.L.R.2d 796, as follows:
“Equity will relieve from the consequences of a bid for a public contract which has been submitted as the result of a remediable unilateral mistake, although a contract has not been consummated, and the principles applied are generally similar to those applied in relieving against completed contracts resulting from unilateral mistake.”
This may state the position of those state courts which have granted relief on a unilateral mistake. We are more impressed with a contrary decision in Colella v. Allegheny County, Aplnt., 391 Pa. 103, 107, 137 A.2d 265 (1957), where the court denied relief under facts quite similar to those in the case before us and stated:
“If a person, firm or corporation submits a sealed bid on public works, the principle contended for by the contractor, namely, that after all the bids are opened he can withdraw his bid under the plea of a clerical mistake, would seriously undermine and make the requirement or system of sealed bids a mockery; it could likewise open wide the door to fraud and collusion between contractors and/or between contractors and the Public Authority. What is the use or purpose of a sealed bid if the bidder does not have to be bound by what he submits under seal? What is the use or purpose of requiring a surety bond as further protection for the public, i.e. the municipality, if a bidder can withdraw his bid under plea of clerical mistake, whenever he sees that his bid is so low that he must have made an error of judgment?”
We see no occasion to make a distinction between a clerical error and an error in judgment. The very purpose of the bid bond was to require the bidder to go forward with the construction contract regardless of his errors in arithmetic or judgment. The ruling does not require plaintiff to perform a contract at a terrific loss. It does require that he pay the penalty contemplated by and inherent in the bidding procedure. Were we to hold otherwise we would materially weaken the purpose of the bidding procedure on public contracts.
We are inclined to agree with the trial court in its conclusions. The bid contract was complete and the bid bond was in effect when the bids were opened. The general rule in Kansas, that in the absence of fraud a unilateral mistake does not excuse the nonperformance of a contract, applies to a bid contract for a public construction project.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
Southwestern Bell Telephone Company (Bell) filed an application for judicial review of an April 5, 1977, final rate order issued by the State Corporation Commission (Commission). On December 14, 1977, the district court sustained Bell’s motion to stay in part the effect of the order, pending determination of the merits of the judicial review application. The Commission appeals from the stay order. The issues on appeal relate to the burden of proof required for obtaining a stay order pursuant to K.S.A. 66-118g.
K.S.A. 66-118g (in the form in effect at the time) provided:
“The filing or pendency of the application for review provided for in this act shall not in itself stay or suspend the operation of any order or decision of the commission, but, during the pendency of such proceeding the court, in its discretion, may stay or suspend, in whole or in part, the operation of the order or decision of the commission. No order so staying or suspending an order or decision of the commission shall be made by any court of this state otherwise than on five days’ notice and after a hearing, and if a stay or suspension is allowed the order granting the same shall contain a specific finding, based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage.”
The trial court, in a thirty-page opinion, granted the stay and found as follows:
“It is apparent from what has been said heretofore that the ruling of the court is to sustain the motion of applicant to stay in part the final order of the Commission dated April 5, 1977. The Court finds specifically, as required by K.S.A. 66-118g, that great or irreparable damage would result to applicant if the Court should refuse to stay the operation of the order of the commission. The evidence upon which this finding is based is found in the testimony of Stanley H. Clough, General Manager of applicant for Kansas, appearing at p. 48 of the transcript of the proceedings had on October 18, 1977, in which it was established that there was no method by which applicant might collect revenues resulting from additional rates granted as a result of successful prosecution of the application for judicial review. It probably need not be reiterated that the Court has also found that the application for judicial review raises substantial questions of fact and law regarding the reasonableness of the determinations by the Commission which form the basis of the order determining allowable rates.”
The Commission contends the findings of the trial court are insufficient to grant the stay in two respects. First, the bare fact that revenues once lost cannot be recovered is insufficient as a matter of law to constitute “great or irreparable damage”; and second, there is no finding that the utility had a reasonable probability of prevailing at the trial of the case on the merits. Bell contends the trial court made all findings required by K.S.A. 66-118g.
We will first determine the “great or irreparable damage” question. The Commission argues the trial court’s decision on this point makes a nullity of the statute. The Commission contends that whenever a public utility receives less than it asks for, then seeks judicial review, the utility can always show that if it ultimately prevails the revenues are forever lost.
In support of this argument the Commission relies heavily on Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 538 P.2d 702 (1975). Kansas-Nebraska arose from an order of the Commission denying the utility’s application for interim rate relief. The power of the Commission to grant emergency interim rate relief was not specified by statute, but was held to be within the Commission’s broad authority. K.S.A. 66-118g was not involved in the case. Notwithstanding this fact, the Commission argues that some of the language in this case supports its position. In Kansas-Nebraska, Syl. ¶ ¶ 1-5, we held:
“1. The state corporation commission has authority to fix interim or temporary rates for public utilities regulated by it.
“2. A standard that a public utility applicant for interim rate relief must show it is in such position that if the requested relief is not granted it will not be able reasonably to serve its customers, meet day by day operating expenses or meet its current payroll expenses is too stringent a standard in the determination of just and reasonable rates.
“3. The determination as to whether a situation warrants the grant of interim rate relief to a public utility rests in the sound discretion of the corporation commission within the perimeter of reasonableness and justice to the utility and those served by it.
“4. Whether an interim rate should be granted pending final decision on an application for change in rates should ordinarily depend on whether irreparable harm would result to the utility by reason of a distinctive and sudden deficiency in revenue which is not subject to recovery.
“5. An applicant for interim rate relief has the burden of making a prima facie showing that its current rates are no longer just and reasonable, using acceptable methods of accounting procedures in determining and allocating costs and rate bases.”
Bell argues the Commission’s interpretation of great or irreparable harm would require the utility to be “dead in the water” before a stay could be granted. By this, Bell means that unless the utility could show that it could no longer operate unless relief were granted, then it could have no stay. Such requirement was specifically rejected by this court in Syllabus 2, above stated, in a case where nonstatutory relief was involved. K.S.A. 66-118g, with which we are involved, simply requires a showing of “great or irreparable damage” to the utility if it ultimately prevails. A substantial sum is involved that would be irretrievably lost should the utility ultimately prevail on the merits of the case.
The Commission’s argument that the statute would become a nullity if a showing of loss of revenue alone is sufficient is without merit. In certain situations loss of revenue could be highly speculative. Likewise, judicial review of a rate order could involve other factors besides lost revenue. For instance, Bell could have objected, not to the amount of revenue allowed, but to the rate spread.
The interests of the public were protected by K.S.A. 66-118h (in the form in effect at the time) which provided:
“In case the order or decision of the commission is stayed or suspended, the order or judgment of the court shall not become effective until a suspending bond shall have been executed and filed with and approved by the court, payable to the people of the state of Kansas, sufficient in amount and security to secure the prompt payment, by the party petitioning for the stay, of all damages caused by the delay in the enforcement of the order or decision of the commission, and repayment of all moneys which any person, firm, corporation or any organization or association of any kind or character may be compelled to pay for any service in excess of the charges fixed by the order or decision of the commission in case such order or decision is sustained or in excess of the rate, fare, toll, rental, charge or classification finally established as lawful and reasonable if the order or decision be vacated or set aside, and in addition thereto or in lieu thereof the court granting a stay or suspending the order or decision of a commission in any manner affecting rates, fares, tolls, rentals, charges or classifications shall direct the petitioner to pay into court from time to time all sums of money collected from any person, firm or corporation in excess of the sum that such person, firm or corporation would have been compelled to pay if the order of the commission had not been stayed or suspended. The sums so paid into court shall be deposited, as the court may direct, in any bank, trust company or other depository paying interest on deposits.
“The court shall require the party collecting such sums to keep such records and issue such receipts as will facilitate the repayment of said sums to the proper persons, firm or corporations if the order or decision of the commission be sustained, or if the rate, fare, toll, rental, charge or classification finally established as reasonable or lawful be less than the sum collected. If the order or decision of the commission be sustained or if the rate, fare, toll, rental, charge or classification finally established as lawful and reasonable be less than the sum collected, the court shall require notice be given, by publication or otherwise, to the persons, firms or corporations entitled to be reimbursed and shall provide for the payment and distribution of such sums of money so impounded or due under the bond herein provided.”
We hold the trial court’s finding as to great or irreparable damage was supported by substantial competent evidence and was in compliance with the statutory requirements.
We turn now to the question of whether a utility seeking a stay under K.S.A. 66-118g must, in addition to showing great or irreparable damage, show a reasonable probability of prevailing at the trial of the case on the merits.
The Commission contends the question has been previously determined in its favor by this court’s rulings in Hayward v. State Corporation Commission, 151 Kan. 1008, 101 P.2d 1041 (1940); and Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P.2d 515 (1963).
Hayward stands for the proposition that a stay order under K.S.A. 66-118g is tantamount to an injunction and is therefore an appealable order. “Tantamount” is defined by Webster’s New Collegiate Dictionary 1191 (1977) as “equivalent in value, significance, or effect.” “Tantamount” does not mean “synonymous to” which is apparently the definition adopted by the Commission.
The earlier Bell case, cited by the Commission, involves two consolidated appeals. One appeal was on the merits of a rate proceeding — the other involves a stay order under K.S.A. 66-118g. The bulk of the lengthy opinion deals with the decision on the merits, which was reversed. The granting of the stay order was held to be erroneous. In so holding, this court (192 Kan. at 88) cited the following from 73 C.J.S., Public Utilities § 67, p. 1204:
“ Tn order to warrant an injunction pendente lite it must appear that there is a reasonable probability that complainant will prevail on final hearing; and, where the matter is doubtful or where it is probable that a practical test will be required to ascertain the reasonableness of the order or regulation in question, such relief should be refused. So, where there is any doubt as to the proper exercise of the commission’s discretion in making its order, as where the record presents a bona fide controverted issue of fact, a temporary injunction should not be granted. Injunctive relief in such case should not be granted except after a plenary trial of the issues on the merits.’ ”
The inclusion of the above citation in that case was improvident. Section 67 deals with the rights of the courts, in the absence of statutory authority, to supervise public utility commissions under general equitable principles, as illustrated on pp. 1196-97:
“The courts have no general supervisory power over public utility commissions, and, except as wider authority may be expressly delegated by statute, judicial interference with their orders by way of injunction must be grounded on some illegal encroachment on property rights. Thus, in accordance with the rule applicable to injunctions generally, a suit for an injunction to restrain the enforcement of an order of the commission will not lie in the absence of some ground for equitable relief. Where other remedies are inadequate a court of equity may take jurisdiction in order to prevent irreparable injury, but an injunction will not be issued if there is another adequate remedy available to complainant. Sufficient equity to support a suit to enjoin the enforcement of an order appears from a showing that, on a failure to comply therewith, the utility will be subject to penalties or to numerous actions for damages.”
The trial court herein (and in the earlier Bell case) was not exercising general equity powers, but was proceeding under express statutory authority.
In further support of its contention that a showing of reasonable probability of success is required, the Commission cites Mt’n States T & T v. Pub. Util, 176 Colo. 457, 463-64, 491 P.2d 582 (1971), as follows:
“In our view, it is elemental that a trial court should have before it a substantial basis for granting any injunction which would place upon the public the burden of higher public utility rates, when such higher rates have been rejected after an administrative hearing before the agency which has been vested with the authority, and presumably, has the expertise to fix such rates. Even upon a substantial showing of probable success in ultimately establishing that the rate authorized is unjust, unreasonable, and even confiscatory, the sanction of any equitable relief, should properly be directed to the administrative agency to permit and set such higher rates as will be deemed to be more consistent with fairness and reasonableness than the current rates under challenge. Thus, the court may not necessarily order an increase to the full extent requested by the public utility.”
Colorado had a stay statute in effect very similar to our own. Colo. Rev. Stat., 1969 Supp. § 115-6-16 (now § 40-6-116). However, its applicability was not argued by counsel and the matter was determined on general rules relative to injunctive relief.
K.S.A. 66-118g is a specific statute authorizing a trial court to grant a stay in this particular type of case upon a specific finding, “based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage.” The statute is clear and there is no indication that the legislature intended the inclusion of the additional requirement that the utility must show reasonable probability of success on the trial of the merits. We must conclude that such a showing is not required.
It should also be noted that, as to both issues on appeal, under the 1978 amendment to K.S.A. 66-118g if the Court of Appeals fails to enter a final order within 180 days after the filing of the application for judicial review the stay is to be automatically entered by the court upon request of the utility. In this event, there is no requirement of even showing great or irreparable damage.
In this opinion we have deliberately excluded any references to the precise monetary amount involved. The omission arises by virtue of certain inconsistencies among the amount of additional revenues sought in the motion for partial stay, the reasons for the requested amount, and the amount of additional revenues allowed under the stay order. This data is not relevant to the limited issues before us on appeal and would add confusion.
No error having been shown, the judgment is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by several parties from orders of the district court in the probate proceedings in a testate estate. The administrator c.t.a. filed a petition in the probate court for construction of the will of Maggie L. Wernet, deceased, for instructions as to the proper distribution of the assets in the estate and for other relief necessary to complete the proper administration of the estate.
Maggie L. Wernet died testate on April 11, 1976, a resident of Rice County. Her will, executed June 9, 1958, was admitted to probate May 27, 1976. The executrix named in the will declined to serve and Kenneth J. Nelson was appointed and qualified as administrator c.t.a. Following his appointment he filed a petition for construction of the will and other relief which was transferred to district court under K.S.A. 59-2402a, since repealed.
In view of the conflicting positions of the parties on appeal and the issues raised thereby, the last will and testament of Maggie L. Wernet will be set out in full. It reads:
“LAST WILL AND TESTAMENT OF MAGGIE L. WERNET
“I, MAGGIE L. WERNET, residing at Little River, Rice County, Kansas, being of lawful age, of sound and disposing mind and memory, and not under any restraint, do hereby make, publish, and declare this to be my Last Will and Testament, hereby revoking any and all former Wills by me at any time made.
“1. I direct that all my just debts, including funeral expenses and the cost of a suitable marker at my grave, be paid by my Executrix at her earliest convenience.
“2. I hereby authorize and empower my Executrix to sell my home described as Lot Nine (9) and the South Ten Feet (S 10') of Lot Ten (10) in Block Twenty (20) in the City of Little River, Rice County, Kansas, such sale to be for cash, but my Executrix shall not be required to obtain an order from the Probate or any other Court for the purpose of making this sale, and she shall sell for such sum and at such time and at public or private sale as in her sole discretion appears to be most advantageous to my Estate.
“3. I give, devise, and bequeath to my nephew, GERALD L. FRY, the Northwest Quarter (NW/4) of Section Twenty-seven (27), Township Twenty (20), Range Six (6) West in Rice County, Kansas, to be his in fee simple absolute forever.
“4. I give, devise, and bequeath to my nephew, LE ROY F. FRY, the Southwest Quarter (SW/4) of Section Twenty-seven (27), Township Twenty (20), Range Six (6) West in Rice County, Kansas, to be his in fee simple absolute forever.
“5. I give, devise and bequeath to my nephew, WAYNE A. FRY, the South Half (S/2) of the Southeast Quarter (SE/4) of Section Two (2), Township Twenty (20), Range Six (6) West, except the West Twenty-five (W 25) acres thereof, in Rice County, Kansas, to be his in fee simple absolute forever.
“6. It is my desire that my five nephews, as follows, GERALD L. FRY, LE ROY F. FRY, WAYNE A. FRY, CLIFFORD F. FRY, AND WILBUR DEAN FRY, shall each receive equal portions of my Estate. Knowing that the respective values of the land above devised are not now equal and might, through oil discovery or other factors, by the time of my death, be materially different from the values at the time of making this Will, I provide in Paragraphs (A) and (B) hereafter for certain cash payments to equalize my remembrances to said nephews. As used in Paragraphs (A) and (B) hereafter, the word ‘value’ shall be absolutely defined as valuation made by the official appraisement made in my.Estate and the respective values of the. three pieces of real estate devised at Paragraphs 3, 4, and 5, above shall be conclusively determined by said appraisement for the purposes of said Paragraphs (A) and (B).
“(A) To CLIFFORD F. FRY and WILBUR DEAN FRY and each of them, I give and bequeath a sum of money equal to the most valuable land described in Paragraphs 3, 4, and 5, above, as determined by said appraisement, subject, however, insofar as WILBUR DEAN FRY is concerned, to the provisions of Paragraph 7, of this Will.
“(B) To each of said nephews who is devised land in Paragraphs 3, 4, and 5, which land is of less value than the most valuable land devised in said paragraphs, I give and bequeath a sum of money equal to the difference between the value of the most valuable of said lands less the value of the land that such nephew takes in the Paragraph 3, 4, or 5, applicable to him, subject, however, insofar as GERALD L. FRY is concerned, to the provisions of Paragraph 7, of this Will.
“7. At the time of making this Will, I am the owner of a mortgage in the face amount of approximately $19,000 from WILBUR DEAN FRY and a mortgage in the approximate amount of $15,000 from GERALD L. FRY. Any interest due on either of said mortgages at the time of my death or that may be incurred after my death, is hereby forgiven. As to any amounts of principal that may be owing, however, on either of said mortgages, I specifically provide that such principal owing from said nephews or either of them, shall be deducted from what under the foregoing paragraphs of this Will, would be their respective interests in my Estate.
“8. I give and bequeath to the following named persons the following specified sums to be paid to them in cash should they survive me, and at such time as is convenient to my Executrix:
HUGH BISHOP............................$1,000.00
GERALD HUNSINGER .....................$1,000.00
LITTLE RIVER LIBRARY ASSOCIATION ......$2,000.00
DOROTHY SITTS ..........................$1,000.00
ADAH FRY ...............................$1,000.00
“9. All the rest, residue, and remainder of my Estate, real or personal, and wherever located, I give, devise and bequeath to my five (5) nephews above named, in equal undivided interests, and to be theirs in fee simple absolute forever.
“10. I nominate and appoint MARY HELEN MUNSELL, of Little River, Kansas, as sole Executrix of this, my Last Will and Testament, and direct that she be not required to give bond in a sum exceeding $10,000.00, and request that the Court grant Letters Testamentary to her upon her furnishing bond in a sum not to exceed $10,000.00.
“IN WITNESS WHEREOF, I have hereunto subscribed my name and caused this, my Last Will and Testament, consisting of two (2) pages, including the attestation clause, to be executed, declared, and published at Lyons, Kansas, this 9th day of June, 1958.”
Signatures of the testatrix and witnesses and the attestation clause, all in proper order, are omitted.
The five nephews, Gerald L. Fry, LeRoy F. Fry, Wayne A. Fry, Clifford F. Fry and Wilbur Dean Fry, all survived their Aunt Maggie. The home of Mrs. Wernet described in paragraph 2 of her will was sold prior to death and the real properties described in paragraphs 3, 4 and 5 were still owned by her at death. The indebtedness of Wilbur and Gerald described in paragraph 7 had not been paid in full and, although the exact amount still owed has not been finally determined, it is shown by the inventory and appraisement as being $19,000 owed by Wilbur and $17,000 owed by Gerald. Both concede the debts are valid and enforceable although the final amounts are yet to be determined. The inventory and appraisement also shows LeRoy as owing $10,000 and Wayne $5,000. The validity of these debts is not disputed although they also are subject to final determination as to the exact amounts. The loans to Gerald were in 1957 and 1971, LeRoy in 1959, Wayne in 1959 and Wilbur in 1956. These debts are properly shown as assets of the estate, as interest and possibly some principal has been paid and no question of the bar of the statute of limitations is raised.
Clifford is shown as owing the estate $15,300 for loans received in 1957 and 1958. It is conceded that Clifford paid no interest or principal for more than five years prior to his aunt’s death.
The total appraised value of the estate is shown on the inventory as $333,261.05 and is as follows:
NW/4, Sec. 27-20S-6W, Rice County, Ks. $96,000.00
Oil production on NW/4 5,000.00
SW/4, Sec. 27-20S-6W, Rice County, Ks. 52,750.00
S/2 of SE/4, Sec. 2-20S-6W, Rice County,
Ks. except west 25 acres thereof 26,500.00
Indebtedness of LeRoy 10,000.00
Indebtedness of Wayne 5,000.00
Indebtedness of Gerald 17,000.00
Indebtedness of Clifford 15,300.00
Indebtedness of Wilbur 19,000.00
Other personal property 86,711.05
$333,261.05
The real estate devised to Gerald, LeRoy and Wayne accounts for $180,250.00 and the remaining property totals $153,011.05, making it obvious that the desire of Mrs. Wernet, as expressed in paragraph 6 of her will, cannot be carried out. Faced with these realities, the administrator c.t.a. filed his petition for construction of the will and other relief.
Gerald, LeRoy and Wayne contended in the court below that the specific devises of real estate in paragraphs 3, 4 and 5 were clear and controlling and that they should each receive the real estate devised to each of them. Clifford and Wilbur contended paragraph 6 of the will was controlling,.that each nephew should receive the same amount from the estate after payment of all debts, taxes (except Kansas inheritance taxes), costs of administration and cash bequests listed in paragraph 8 and that the real estate should be charged with the debts, etc., and legacies or be sold if necessary to effect such an equal distribution. In addition, Clifford contended that the $15,300.00, shown on the inventory as being owed by him, was actually an advancement received prior to the making of the will and that as it was not mentioned in the will, any indebtedness which he might otherwise have owed was cancelled. In the alternative, he argues the debt, if not an advancement, is barred by the statute of limitations and therefore is not collectible from or chargeable as an offset to him.
The trial court made the following findings of fact and conclusions of law:
“FINDINGS OF FACT
“I. This matter is before the Court on the Petition to Construe the Will of Maggie L. Wernet, dated June 9th, 1958.
“2. The above captioned case is governed by the law relative to construction of wills set forth in the case of In re Estate of Graves, 203 Kans. 762.
“3. There is no uncertainty or ambiguity in the Will of the decedent.
“4. The obligation of the Court in the above captioned case is to determine the effect of the Will where there are insufficient assets in the Estate to carry out the intentions of the decedent.
“5. Paragraphs Three, Four and Five of the Will devise real estate to three nephews with the following result.
a. The Northwest Quarter of Section Twenty-seven (27), Township Twenty South (20S), Range Six West (6) of the 6th Principal Meridian in Rice County, Kansas,
shall be the property of the decedent’s nephew, Gerald L. Fry.
b. The Southwest Quarter (SW/4) of Section Twenty-seven (27), Township Twenty South (20S), Range Six West (6) of the 6th Principal Meridian in Rice County, Kansas,
is devised to LeRoy F. Fry and shall be his property.
c. The South Half (S/2) of the Southeast Quarter (SE/4) of Section Two (2), Township Twenty South (20S), Range Six West (6) of the 6th Principal Meridian, in Rice County, Kansas, EXCEPT the West Twenty-five (W 25) acres thereof,
is devised to Wayne A. Fry, a nephew and shall be his property.
“6. One of the nephews, Clifford F. Fry, claims that loans to him in the amount of Fifteen Thousand Three Hundred Dollars ($15,300.00), which are listed in the Inventory as an asset of the Estate, are barred by the Statute of Limitations because no interest had been paid on the note since they were made. The Court does not agree with this contention and the Court finds that unpaid notes are an asset of the Estate.
“7. Debts, taxes, except State Inheritance Taxes, and the cost of administration shall be paid in full.
“8. The specific bequests set forth in Paragraph Eight (8) of the Will shall be carried out to the extent that there is money available to carry them out.
“9. The residue of the Estate, if any there be, shall be divided equally between Wilbur Dean Fry and Clifford F. Fry.
“CONCLUSIONS OF LAW
“The Court considers that Conclusions of Law shall be in conformity with the Findings of Fact set out above. Such conclusions being as follows.
“1. The factual situation between the case being considered by the Court and the Supreme Court case of In re Estate of Graves 203 Kans. 762, being similar on the facts, the Court finds that as a matter of law that said Graves case governs the law applicable in the instant case.
“2. The intention of the testator being clear and unequivocably expressed there is no occasion to employ rules of judicial construction and the Will will be enforced in accordance with its terms and provisions.
“IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED: that the Order of this Court shall be in accordance with the findings of fact and conclusions of law set forth above. The Memorandum Decision of the Court dated June 8th, 1978, shall be a part of this Journal Entry together with a copy of the Decedent’s Will, dated June 9th, 1958.”
Wilbur and Clifford have appealed from the findings, conclusions and orders of the trial court. The administrator c.t.a., renews his request for instructions on administering the estate.
While the terms and conditions of the will of Maggie L. Wernet are clear and- unambiguous, problems have arisen due to an insufficiency of assets to carry out the clear directions in the will. It is apparent that at the time the will was executed Mrs. Wernet must have had sufficient cash and other assets to effect an equal distribution of her estate when the values of the specific devises to Gerald, LeRoy and Wayne were taken into consideration. Unfortunately, inflation has had a two-fold effect upon Mrs. Wernet’s plans; both disastrous. The values of the three parcels of farmland have skyrocketed while her personal estate has, in all probability, been reduced considerably through higher living costs, lower income, fixed values of intangibles and low prices for farm commodities.
With the foregoing factual background, we will turn to the issues raised upon appeal. All parties agree as to the basic rules to be followed in the construction of a will. However, such rules need not be repeated here.
In Johnston v. Gibson, 184 Kan. 109, 334 P.2d 348 (1959), we held:
“Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.” Syl. 3.
See also In re Estate of Graves, 203 Kan. 762, 457 P.2d 71 (1969).
Is the will of Maggie L. Wernet ambiguous and is it necessary to apply rules of judicial construction? We think not.
Paragraph 1 of the will directs that debts, funeral expenses, etc., be paid; paragraph 2 authorizes the sale of her home (which was done prior to death); paragraph 3 devises specific real property to Gerald “to be his in fee simple absolute forever”; paragraphs 4 and 5 devise specific real properties to LeRoy and Wayne in the same language; paragraph 6 expresses the desire that all five nephews shall share equally in the estate and recognizing that the values of the real properties are not the same and may change materially makes provision to equalize the share of each nephew by payment of cash sufficient to bring the shares of four of the nephews to that of the one receiving the most valuable piece of real estate; paragraph 7 forgives any interest which might be owed by Wilbur and Gerald on certain existing indebtedness; paragraph 8 provides cash bequests to others totaling $6,000.00; paragraph 9 divides the residue of the estate equally among the nephews and paragraph 10 provides for the appointment of an executrix.
As stated in Graves:
“After a careful examination of all the language of the will we find it to be clear, certain and free of ambiguity. There is nothing to indicate that the testatrix did not use the words she intended to use. Neither is there anything to indicate she did not understand the meaning of the words used. It is clear that the testatrix wanted the legacies of her three children equalized, provided it could be done from her ‘personal estate.’
“The language of the will being clear, definite and unambiguous, we need not, and should not, consider rules of judicial construction to determine the intention of the testatrix.” 203 Kan. at 768.
The language of the will now before the court being clear, certain and free of ambiguity, we need not consider the application of rules of judicial construction.
All parties agree that in the interpretation of wills the primary function of the court is to ascertain the testator’s intent from the four corners of the will and to carry out that intent if possible, and not contrary to law or public policy. In re Estate of Cline, 170 Kan. 496, 227 P.2d 157 (1951). It is at this point that the parties differ. The trial court held, and the appellees contend, that our decision in Graves is controlling; that paragraph 6 of the will does not create a charge upon the specific devises and that the equalization desired by the testator must come from whatever assets are available, if any, other than the real properties.
In Graves a similar situation existed. The testatrix made certain specific devises of real property to her son, Harlan, and daughter, Mary Faye, “To Have and To Hold, forever.” She then provided that from her personal estate her daughter Gena would receive property or money sufficient to give her an equal share with Harlan and Mary Faye. After payment of debts, expenses, taxes, etc., there were insufficient remaining assets to provide an amount to Gena equal to the value of the real properties received by Harlan and Mary Faye. The court held that while the intention of the testatrix was clear that her children should share equally, the court could not change her will and assert a charge against the real estate to effect such equalization.
The rules governing charging legacies upon the testator’s realty are found in 80 Am.Jur.2d, Wills §§ 1768-70. Real property is not chargeable with the payment of legacies unless the intention of the testator to so charge is expressly declared or arises by clear implication from the language of the will. § 1768. There is no express charge indicated in the Wemet will, therefore the rules governing express charges are not necessary for our analysis. Under some circumstances the intention to charge realty will be implied when personalty is insufficient to pay legacies. However, insufficiency of personalty alone will not support this implied intention. § 1770. Realty may be charged by implication if when the will was executed there was insufficient personalty to pay the legacies and the testator was aware of that fact. There is no showing that such was the factual situation in the case at bar.
As we said in Graves:
“It has been suggested that at the time the will was made, 1955, one-half the value of the land would not have exceeded $36,600.00 and at that time there was ample personal property to equalize the legacies to the three children. It is further suggested that the testatrix did not anticipate the appreciation of land values and therefore the court should equalize the legacies regardless of the plain and unambiguous language of the will. A court could not equalize the legacies without indulging in the most doubtful conjecture such as:
“Would the testatrix have left the will the way it was written had she realized the increase in the value of the land? She did not change her will, yet she must have known the value of lands was increasing.
“Would the testatrix have given the three children equal shares in the land had she known there would not be sufficient personal property to equalize the legacies? The fact must have been known before her death.
“Would the testatrix have made a charge against the land to equalize the legacies had she known the personal property would not be sufficient? Would she have risked the forced sale of the land to strangers in order to equalize the legacies?
“These are mere conjectures. There is nothing in the clear and unambiguous language of the will to indicate any such desire on the part of the testatrix.
“We would not encourage the suggestion that a court may wander from the actual words of a will into the region of conjecture as to what it is reasonable to suppose the testatrix would have done had she contemplated a certain event happening. A court is not free to roam such unfenced fields of speculation. We refute the notion that any canon of construction entitles a court to indulge in its imagination and go into what the testatrix would have said had she anticipated a changed condition.
“A court cannot correct a mistake made by a testatrix unless the mistake appears on the face of the instrument, and it also appears what would have been the will if the mistake had not occurred. The duty of the court is to construe not to construct the will. It is without power to modify the instrument for the purpose of making it conform to the opinion of the individual judge as to what constitutes an equitable distribution of the testator’s property. Neither can it make a conjecture as to what a testatrix would have done had she foreseen the future and then build up a scheme for the purpose of carrying out what it thought would have conformed to the desire of the testatrix.” 203 Kan. at 769-770.
The language of a will must be construed as of the date of its execution and in light of the then surrounding circumstances, although the will speaks at the date of death. Changes in circumstances after execution may not be considered in ascertaining the testator’s intent. It is the intention of the testator spoken in the words of his will that govern and not any intention deduced from speculation as to what would have been done had the change been anticipated. 80 Am.Jur.2d, Wills § 1152. Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25 (1912). For other cases supporting these rules, see Graves, 203 Kan. at 770-1.
Appellants argue that Graves may be distinguished from the present case in that the Graves will provided for equalization from her personal estate while the Wernet will merely provides for equalization from cash. In Graves the devises were “To Have and To Hold, forever” and in the Wernet will “to be his in fee simple absolute, forever.” The distinction asserted by appellants would appear to be inconsequential and without merit.
As the will does not provide for a charge upon the realty, we must next look to the statutes to determine the source of funds for payment of debts, costs of administration, taxes (except Kansas inheritance taxes) and related items. (K.S.A. 59-1405.)
Since the will does not “otherwise provide,” K.S.A. 59-1405 dictates the order in which assets may be appropriated for lawful demands against the estate. Specific realty devises fit into the sixth and final classification of assets and are not to be appropriated until the first five classifications are exhausted. Moreover, in the absence of anything in the will to the contrary, the burden of federal estate taxes falls on the residuary legatees rather than on specific devises or bequests. In re Estate of West, 203 Kan. 404, 454 P.2d 462 (1969).
We conclude there was no error by the trial court in its finding that the real properties devised to Gerald, LeRoy and Wayne in paragraphs 3, 4 and 5 of the will vest free and clear of any charge for debts, expenses, taxes (except inheritance taxes) or cash legacies contemplated in paragraph 6 of the will.
Appellant Clifford F. Fry claims the trial court erred in finding that his three unpaid notes are assets of the decedent’s estate. These notes were incurred from November 18, 1957, to April 30, 1958, and were existing debts when Mrs. Wernet executed her will on June 9, 1958. The appellant contends these notes represent advancements which were cancelled by the decedent’s subsequent will containing no mention of any debt due from him.
In support of this contention, appellant cites the cases of In re Estate of Bush, 155 Kan. 556, 127 P.2d 455 (1942), and Baker University v. K.S.C. of Pittsburg, 222 Kan. 245, 564 P.2d 472 (1977). Both of these cases are concerned with the doctrine of ademption. In Bush the debts in question were specifically referred to as “advancements” in the notes evidencing the indebtedness. It might be well to observe that advancement is a misnomer in this case since the term only applies to intestate succession; however, we recognize that ademption and advancement, being analogous, are often used interchangeably. To apply, by analogy, advancement rules the courts require that the testator expressly provide language in the will indicating an advancement was intended. 80 Am.Jur.2d, Wills § 1720.
In the present case, there is no language in the notes that would indicate they were intended to be or considered as advancements. Furthermore, the will does not expressly provide that the notes are to be treated as advancements. Based upon the foregoing, the notes of Clifford F. Fry cannot be considered advancements but rather ordinary unsecured debts. In the alternative, it is claimed that the debts are barred by the statute of limitations.
As unsecured debts evidenced by promissory notes in writing upon which no payments have been made, the statute of limitations would be an affirmative defense in an action against appellant by the administrator c.t.a. K.S.A. 60-511. However, the statute is not a bar to a setoff to the extent of appellant’s distributive share. Holden v. Spier, 65 Kan. 412, 70 Pac. 348 (1902).
In Holden, Nathaniel Head died and C. S. Holden was entitled to a share of his estate. Holden had been indebted to the decedent upon a promissory note which was barred by the statute of limitations. The administrator attempted to declare a setoff of Holden’s indebtedness against his distributive share of the estate. Holden asserted, among other defenses, the bar of the statute of limitations. This court stated:
“Holden set up the statute of limitations as a bar to any reduction of his share because of indebtedness to Head or his estate. The indebtedness, or at least a portion of it, would have been barred if an ordinary action to recover it had been brought. Is the statute applicable when the question is whether the indebtedness of an heir to an estate shall be retained out of his distributive share? We think the bar of the statute cannot be interposed in such cases. The theory of the law, and it is an equitable one, is that the indebtedness of an heir of the estate should be regarded as assets of the estate already in his hands, and that his legacy or share is to that extent satisfied. It would be grossly inequitable to allow an heir to obtain his full share of an estate while he was withholding a portion of the same that was already in his hands. It has been said that ‘it is against conscience that he should receive anything out of the fund without deducting therefrom the amount of that fund which is already in his hands, as a debtor to the estate.’ This is not a mere question of set-off, but of equitable lien and right of retainer. (Smith v. Kearney, 2 Barb. Ch. 548.) Our statute of limitations is one of repose and does not raise a presumption of payment, as in some of the states. The lapse of time does not extinguish an obligation nor satisfy a debt, but the statute simply bars the remedy and prevents the use of the obligation or debt as a cause of action of affirmative defense. Some of the courts have held that the statute of limitations applies, and that there can be no deduction from a distributee’s share on account of an indebtedness which is barred. (Milne’s Appeal, 99 Pa. St. 483; Allen v. Edwards, 136 Mass. 138.) But the better, and probably the greater number of, authorities hold to the contrary view.” pp. 416-417.
The trial court was not in error in its determination that Clifford’s indebtedness was not cancelled by the statute of limitations. The court and the administrator c.t.a. were in error, however, in classifying Clifford’s indebtedness as an “asset” of the estate and assigning a value thereto. The debt of Clifford neither adds to nor detracts from the quantum of assets owned by Maggie L. Wernet at the time of her death and cannot be consid ered as an “asset” in determining the total valuation of the estate. Clifford’s indebtedness merely affects the method of distribution of the actual assets in the estate and does not add to those assets. The indebtedness of Clifford, together with accrued interest thereon, must be calculated and set off against Clifford’s distributive share of the estate, if any.
The final point on appeal is raised by Wilbur. He contends that finding of fact number 8 made by the trial court is incorrect and erroneously directs payment of the $6,000.00 cash bequests in paragraph 8 of the will prior to any payment of cash to Wilbur and Clifford. His point has merit. The trial court in its findings referred to such bequests as “specific bequests” while Wilbur contends they are general legacies.
A specific legacy or specific bequest is defined in Taylor v. Hull, 121 Kan. 102, 245 Pac. 1026 (1926) as:
“A specific legacy is a bequest of some definite thing capable of identification by description from other property of the testator.” Syl. 2.
“In order to make a specific legacy effective, the property bequeathed must be in existence and owned by the testator at the time of his death.” Syl. 3.
96 C.J.S., Wills § 1129 (a) (1) states in part:
“A bequest of a sum of money, without designating the fund out of which it is to be paid, is a general legacy . . . .”
See also In re Estate of West, 203 Kan. 404.
It is apparent that the cash bequests in paragraph 8 of the will and the gifts of cash in paragraph 6 are all general legacies as no specific fund or source is specified for either. If there will be no residue in the estate the cash equalization bequests in paragraph 6 and the cash bequests in paragraph 8 must be distributed pro rata to the extent possible. K.S.A. 59-1405 and In re Estate of Graves, 203 Kan. 762.
The decision of the trial court is affirmed in part, reversed in part and the case remanded for further proceedings consistent with the foregoing opinion.
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The opinion of the court was delivered by
Holmes, J.:
Once again the attack upon governmental immunity comes before this court. This time the application of K.S.A. 46-901 to highway defects upon the Kansas turnpike is in question.
Plaintiff filed an action in the district court against the Kansas turnpike authority (KTA) for the wrongful death of her husband and three children as a result of a one car collision on the Kansas turnpike. Plaintiff was driving the family automobile southbound west of the Cassoday exit when her automobile left the road and struck a guardrail. Her husband and three of their children who were passengers were killed. Plaintiff alleged certain defects in the turnpike roadway were the proximate cause of the collision and also alleged the breach of an express warranty that the turnpike met all the federal standards for an interstate highway. The allegation of a breach of warranty was based upon the designation of that portion of the turnpike as being a section of “Interstate 35.”
The trial court sustained a motion, pursuant to K.S.A. 60-212(h)(6), by the KTA to dismiss the action. The trial court ruled that K.S.A. 46-901 granted immunity to the KTA and further ruled as a matter of law that the claimed express warranty could not be established. This appeal followed.
K.S.A. 46-901 provides:
“(a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
(1) The state of Kansas; and
(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and
(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.
(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.
(c) The state of Kansas and all boards, commissions, departments, agencies, bureaus and institutions and all committees, assemblies and groups declared to be immune from liability and suit under the provisions of subsection (a) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit.”
At the outset we should consider one of appellee’s arguments. Appellee contends, and the trial court held, that the issues in this case have been determined adversely to plaintiff’s position and are controlled by Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970). In Woods the plaintiff brought an action for personal injury resulting from an automobile accident allegedly caused by a nuisance created by the KTA. The Woods accident occurred July 20, 1968, at a time when judicially established governmental immunity existed. In Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969), we abolished, effective August 30, 1969, the previously existing governmental immunity as applied to proprietary functions. The legislature, at its next session, reacted to Carroll by passing K.S.A. 46-901 and 902 effective March 26, 1970. (L. 1970, ch. 200, Sec. 1 and 2.) The decision in Woods was filed July 17, 1970. The court quoted K.S.A. 46-901 and then stated:
“By this enactment the legislature, in its wisdom, has expressed the public policy of this state in the field of governmental immunity pertaining to the state and its various agencies. The legislature in clear and unambiguous language has declared the Kansas turnpike authority immune from liability on implied contract or for negligence or any other tort, which would include nuisance, except as provided by statute. The law as it now stands remains in harmony with our earlier turnpike cases, namely, that the authority is immune from tort liability except to the extent such immunity is waived by statute. (K.S.A. 68-2015.)
“Certainty and stability in the law are always desirable and in the long run best serve the bench, the bar and the citizens of the state. Now that the legislature has spoken in a comprehensive manner on the subject of immunity for the state and its agencies - something lacking at the time of Carroll - we believe sound judicial policy dictates that further inroads by this tribunal into the immunity doctrine as it relates to liability of the state is neither warranted nor justified. We therefore decline to engraft solely for plaintiff’s benefit the nuisance exception to the immunity previously accorded the Kansas turnpike authority under our law as it existed prior to Carroll.” pp. 773-774.
While it has been argued that Woods stands for the proposition that the KTA is immune from suit by reason of the statute, it is clear from the time sequence involved that the reference to the statute was dictum and not controlling of the actual decision. The decision of the court was that the nuisance exception would not be engrafted upon the judicially imposed immunity which existed prior to Carroll. The reference to the new statute by the court was in support of its determination not to recognize the nuisance exception to the doctrine.
In Medford v. Board of Trustees of Park College, 162 Kan. 169, 175 P.2d 95 (1946), this court stated:
“Dictum often develops in opinions from comments upon arguments advanced by counsel for the respective parties. Dicta and obiter dicta which go beyond the case may be respectedbut should not control a judgment in a subsequent case when the precise point is presented, argued and considered by the entire court. . . . Nobody is bound by dictum . . . ‘not even . . . the court itself when it may be further enlightened by briefs and arguments of counsel and mature consideration and when it becomes a question squarely presented for decision.’ (Putnam v. City of Salina, 137 Kan. 731, at 733, 22 P.2d 957).” p. 173.
The opinion in Woods reflected the court’s thoughts on the effect of the new statute but the application of the statute was not an issue in the case and as the statements were dictum they were not determinative of the issues in Woods and, being dictum, are not determinative of the issue before us.
Appellant initially argues that as the term “authority”is not included in the statute, the immunity established does not apply to the KTA. She argues further that if the KTA is included within 46-901, then the statute creates an unconstitutional classification resulting in invidious discrimination in violation of the equal protection clauses of both the federal and Kansas constitutions.
In support of her first argument, appellant points out that K.S.A. 46-902, enacted as a part of the same bill as 46-901, specifically includes “authorities” in the statute which provides that the immunity granted in 46-901 will not apply to local units of government. The statute as originally enacted provided:
“46-902. Nonapplication to local units of government, (a) Nothing in Section 1 [46-901] of this act shall apply to or change the liabilities of local units of government, including (but not limited to) counties, cities, school districts, community junior colleges, library districts, hospital districts, cemetery districts, fire districts, townships, water districts, irrigation districts, drainage districts and sewer districts, and boards, commissions, committees, authorities, departments and agencies of local units of government.” (1970.)
Appellant further points out that the same legislature enacted K.S.A. 74-4714 dealing with liability insurance wherein “state” was defined as:
“[A]ny agency, board, commission, institution, bureau, authority or department of the state of Kansas.”
The classifications in 74-4714 are the same as those in 46-901(a)(2) except the word “authority” is specifically includéd. Appellant argues that the 1970 legislature was obviously concerned with the use of the word “authority” when referring to an arm of the state and consequently the exclusion of the term from 46-901 shows an intent that the KTA was not included in the statute.
This court has consistently held that the Kansas turnpike authority is an arm or agency of the state, created by the legislature to perform an essential governmental function. Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970); Miller v. Kansas Turnpike Authority, 193 Kan. 18, 392 P.2d 89 (1964); Hosterman v. Kansas Turnpike Authority, 183 Kan. 590, 331 P.2d 323 (1958); Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172 (1957); Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P.2d 849 (1957); State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 273 P.2d 198 (1954). This determination of status is wholly in harmony with K.S.A. 1978 Supp. 68-2003, wherein the authority is designated as follows:
“There is hereby created a body politic and corporate to be known as the ‘Kansas turnpike authority.’ The authority is hereby constituted a public instrumentality and the exercise by the authority of the powers conferred by this act in the construction, operation and maintenance of turnpike projects shall be deemed and held to be the performance of an essential governmental function.”
Although “authorities” are not specifically included in 46-901, subsections (2) and (3) of section (a) are sufficiently broad to include the Kansas turnpike authority. Appellant’s first point is without merit.
Appellant’s second argument is that the application of 46-901 to highway defects upon the turnpike creates an unconstitutional classification violative of the equal protection clauses of the federal and state constitutions. It would serve no useful purpose to again review the history of governmental immunity in Kansas. For those who may be interested, Brown v. Wichita State University (Brown I), 217 Kan. 279, 540 P.2d 66 (1975), and Brown v. Wichita State University (Brown II), 219 Kan. 2, 547 P.2d 1015 (1976), provide excellent dissertations upon the doctrine, its history and the constitutional questions involved.
When statutes are challenged as unconstitutional, certain principles guide this court’s consideration.
“Long-standing and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. (State, ex rel., v. Fadely, 180 Kan. 652, 658, 659, 308 P.2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266; Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506; and 16 Am. Jur. 2d, Constitutional Law, § 175, pp. 399-401.)” Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304 (1975).
With these principles in mind, we must first determine whether a statute apparently valid upon its face may be unconstitutional and invalid as to a specific set of facts, circumstances or classifications.
“It is well settled that a statute may be constitutional as applied to one set of facts and unconstitutional as applied to another. Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 289, 42 S.Ct. 106, 66 L.Ed. 239; Kansas City Southern R. Co. v. Anderson, 233 U.S. 325, 34 S.Ct. 599, 58 L.Ed. 983.” Mintz v. Baldwin, 2 F. Supp. 700, 705 (N.D.N.Y. 1933).
The determination of whether the broad general language of 46-901 is valid when applied to defects in the turnpike requires an examination of the overall legislative and judicial action pertaining to highway defects. Any motorist traveling on any state highway (K.S.A. 1978 Supp. 68-419), county or township road (K.S.A. 68-301), or city street (Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 [1966]) has recourse for property damage, personal injury or death sustained by reason of the failure of the state, county, township or city to properly maintain the highways, roads and streets. Yet it is contended by the appellee that the motorist who elects to travel the most modern super highway in Kansas, and pays a fee for the privilege, has no such right or protection due to the broad general language in K.S.A. 46-901. If the plaintiff Jeanette Flax had been driving on any other public thoroughfare in the State she would not be denied the right to pursue her cause of action and she cannot constitutionally be deprived of that right while traveling on the turnpike.
In Carroll v. Kittle, 203 Kan. 841, this court found there was no rational basis for governmental immunity when the governmental body was engaged in a proprietary function and judicially wiped it from the books. In Carroll plaintiff brought an action against the members of the Board of Regents of the State of Kansas and others for personal injuries sustained by plaintiff, a private paying patient, while hospitalized at the University of Kansas Medical Center. The trial court sustained a motion to dismiss on the basis of governmental immunity. In reversing the trial court and abolishing the doctrine of governmental immunity when proprietary functions were involved, this court stated:
“It is difficult for the majority of the court to see why one governmental agency performing precisely the same acts - e.g., operating a hospital for profit - should be liable for negligence and others should not.” p. 847.
K.S.A. 46-901 and 902 comprise the legislative response to Carroll and reestablished governmental immunity for the State of Kansas and its various agencies, etc., for all activities, both governmental and proprietary, while maintaining liability for local units of government. Exceptions to the broad grant of immunity granted the State in 46-901 are found in other legislation.
In the present case, the inconsistency in the application of the doctrine, as now established by legislative action rather than judicial flat, reaches the ultimate in its discrimination against one small segment of the motoring public. Let us assume Jeanette Flax had entered Kansas coming from Denver, Colorado, on Interstate 70 with a destination of Kansas City. She, and her family, would have been protected from highway defects for over three-fourths of her journey in Kansas. Suddenly, by passing through Topeka and the turnpike tollgate, she loses her protection for the remaining few miles of her journey without ever leaving the same highway. Damage caused by a highway defect five miles west of Topeka would be compensable while the same damage on the same highway from a similar defect five miles east of Topeka would not.
To paraphrase Carroll: It is difficult to see why the state, counties, townships and cities performing precisely the same acts - e.g., the maintenance of a public thoroughfare - should be liable for defective roadways and the Kansas turnpike authority should not.
Legislation adopted by the legislature indicates an intent that the motorists of Kansas shall have recourse for highway defects and the attempt to bring one small segment of the motoring public within the general immunity language of 46-901 constitutes the rankest discrimination. Further indications that the legislature intends that the turnpike motorist should be treated the same as others is borne out by the adoption in 1975 of 75-5012, which attached the Kansas turnpike authority to the department of transportation as a part thereof. K.S.A. 46-901, which appellee contends would deny recovery to the turnpike motorists cannot be constitutionally valid as to that group in view of the other legislation which specifically grants a right of recovery to all other motorists. An attempt to put the turnpike motorist in a class separate and apart from all other motorists will not pass constitutional muster.
As early as 1885, the Supreme Court, in a tax case, stated:
“And it is no objection to the remedy in such cases, that the statute whose application in the particular case is sought to be restrained is not void on its face, but is complained of only because its operation in the particular instance works a violation of a constitutional right; for the cases are numerous, where the tax laws of a State, which in their general and proper application are perfectly valid, have been held to become void in particular cases, either as unconstitutional regulations of commerce, or as violations of contracts prohibited by the Constitution, or because in some other way they operate to deprive the party complaining of a right secured to him by the Constitution of the United States.” Poindexter v. Greenhow, 114 U.S. 270, 295, 29 L.Ed. 185, 5 S.Ct. 903 (1885).
Harvey v. Clyde Park Dist., 32 Ill. 2d 60, 203 N.E.2d 573 (1964), involved an action on behalf of a minor for injuries alleged to have been caused by the negligence of the defendant park district in maintaining a children’s slide. The State of Illinois had adopted numerous statutes establishing governmen tal immunities and creating exceptions to them. In discussing discrimination, which might occur by reason of a series of statutes on the same general subject, the court stated:
“The circumstance that the alleged arbitrary discrimination results from a statutory pattern rather than from a single statute has not barred consideration of claims of violation of the equal protection clause of the 14th amendment to the Constitution of the United States, (Gregg Dyeing Co. v. Query, 286 U.S. 472, [52 S.Ct. 631], 76 L.Ed. 1232; cf. McGowan v. Maryland, 366 U.S. 420, 423-428, [81 S.Ct. 1101], 6 L.Ed.2d 393; Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 586-588, [81 S.Ct. 1135], 6 L.Ed.2d 551; Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 618-624, [81 S.Ct. 1122], 6 L.Ed.2d 536,) and we see no reason why that circumstance should bar the plaintiff’s claim of discrimination in this case.” pp. 64-65.
The defendant relied upon a statute which granted park districts immunity for negligence although other governmental units operating the same type facilities had limited liability or no immunity at all. After reviewing various statutes granting various degrees of immunity in different situations the court stated:
“So far as the present case is concerned, cities and villages, park districts, school districts and forest preserve districts, as well as the State itself, all maintain recreational facilities that are available for public use. If the child involved in the present case had been injured on a slide negligently maintained in a park operated by a city or village there is no legislative impediment to full recovery. If the child had been injured on a slide negligently maintained by a school district, or by the sovereign State, limited recovery is permitted. But if the child had been injured on a slide negligently maintained by a forest preserve district, or, as was actually the case, by a park district, the legislature has barred recovery. In this pattern there is no discernible relationship to the realities of life. We hold, therefore, that the statute relied upon by the defendant is arbitrary, and unconstitutionally discriminates against the plaintiff.” pp. 66-67.
The court held that by reason of the pattern established by the series of statutes, the one granting the state park districts immunity was unconstitutional.
In State v. Smiley, 65 Kan. 240, 69 Pac. 199 (1902), aff’d 196 U.S. 447, 49 L.Ed. 546, 25 S.Ct. 289 (1905), this court recognized the proposition that general language, valid upon its face, may be construed to exclude certain subjects or classes of things in order that the entire statute will not be held unconstitutional:
“Throughout the entire history of English and American law the courts have been ruling that the general words of statutes were to be restrained in import and application whenever the taking of them in literal sense would lead to absurd or hurtful consequences, and the same is true under the American system of written constitutions, whenever the taking of general words in their full signification would expose them to conflict with the organic law.” p. 249.
We have no hesitancy in finding that a statute, apparently valid upon its face, may be unconstitutional as to a particular set of facts, circumstances or classifications.
Appellee, contending claims for turnpike defects are barred by 46-901, quotes from Brown II three tests or interests which were held to support the legislative classification established by the statutes. They were (1) the necessity to protect the state treasury, (2) allowing government to function without the threat of time and energy consuming legal actions, and (3) protection from high-risk activities.
K.S.A. 68-2001 et seq., as amended, are the statutes which control the Kansas turnpike authority and the construction and maintenance of toll roads within the state. The act contemplates financing by the issuance of revenue bonds and that the maintenance of the turnpike and the retirement of bonds shall be paid solely from revenue generated by the tolls collected from the public for the use of the roadway and not from state funds.
K.S.A. 68-2008 provides in part:
“Revenue bonds issued under the provisions of this act shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision thereof, but all such bonds shall be payable solely from the funds herein provided therefor from revenues.”
K.S.A. 1978 Supp. 68-2009 provides for the establishment of tolls for the use of the turnpikes and states in part:
“Such tolls shall be so fixed and adjusted in respect of the aggregate of tolls from the turnpike project or projects in connection with which the bonds of any issue shall have been issued as to provide a fund sufficient with other revenues, if any, to pay (a) the cost of maintaining, repairing and operating such turnpike project or projects and (b) the principal of and the interest on such bonds as the same shall become due and payable, and to create reserves for such purposes.
“Such tolls shall not be subject to supervision or regulation by any other commission, board, bureau or agency of the state.”
Thus, it would appear that protecting the interest of the state treasury is not a valid argument in support of granting immunity to the Kansas turnpike authority, which functions free and clear of any obligation to, or receipt of funds from, the state treasury.
To say that the authority must be cloaked with immunity for defective highways because of time and energy consuming legal actions and as a protection from high-risk activities, when the state and every county, township and city are deemed capable of carrying such burdens, is not persuasive of any great need to single out the Kansas turnpike authority for special treatment and protection.
The ultimate effect of our series of statutes is to create a small class of motorists who are subjected to discrimination for no other reason than they happened to take the turnpike and as a result, are deprived of a remedy granted the motorist on every other road in Kansas. While a majority of the present members of this court would continue, in most situations, to uphold the constitutionality of K.S.A. 46-901, based upon Brown II and subsequent cases, it is obvious that the statute cannot be constitutional as applied to turnpike defects. (It might be said in passing that the current session of the Legislature has also recognized the inequities created by governmental immunity, and has seen fit to repeal 46-901 and 902 through the enactment of a tort claims act.) Such a classification is unconstitutionally discriminatory and therefore we hold K.S.A. 46-901 is constitutionally invalid to the extent that it attempts to grant the KTA immunity for damage suffered by any person who shall sustain damage by reason of any defect in the Kansas turnpike, including but not limited to the traffic lanes, acceleration lanes, deceleration lanes, structures, bridges, shoulders, medial strips, and access ramps located within the right-of-way of the Kansas turnpike authority.
While the foregoing would be sufficient to dispose of the other issues on appeal, as the case must be remanded for further proceedings, we deem it appropriate to consider two other matters.
Appellant, as one of her points, argues that the erection and maintenance of “Interstate” highway markers constituted an express warranty that the turnpike conformed to the standards of a federal interstate highway. We conclude that the trial court was correct in its holding as a matter of law that there is no such express warranty to patrons using the turnpike. Naaf v. Griffitts, 201 Kan. 64, 439 P.2d 83 (1968); Adrian v. Elmer, 178 Kan. 242, 284 P.2d 599 (1955); Topeka Mill & Elevator Co. v. Triplett, 168 Kan. 428, 213 P.2d 964 (1950).
In K.S.A. 1978 Supp. 68-419, allowing recovery from the state for highway defects, the legislature has set forth a detailed procedure to be followed in presenting a claim against the state through the department of transportation. Unfortunately, no such procedure has been established for claims against the KTA and it is not the function of this court to establish such a procedure. Having determined that K.S.A. 46-901 is unconstitutional when applied to the KTA in a turnpike defect case, plaintiff is free to pursue her action as in any other civil case.
The judgment of the trial court is reversed and the case remanded for further proceedings in conformance with the views set. forth above.
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Opinion by
Strang, C.:
Action to foreclose a mortgage against John Cupp and Mary Cupp, his wife, begun in the district court of Lyon county July 21,1889. John S. Watson was made a party defendant, because he claimed some interest in the land described in the mortgage. Cupp and wife defaulted. Watson answered, and claimed title to the land un der a sheriff’s deed. Plaiutiff replied that the land sought to be foreclosed was the homestead of Cupp and wife; that they purchased it on the 14th day of October, 1886, as and for a homestead, and went into occupation thereof on that day, and continuously occupied it as a homestead from that time to the commencement of this suit; the defendant Watson demurred to the reply, and alleged that the reply stated no defense to his cause of action. The demurrer was sustained. The plaintiff elected to stand on its pleading, and judgment was rendered for the plaintiff against the Cupps for the amount of its mortgage, and in favor of the defendant Watson against all t:he other parties to the suit, quieting the title of said Watson to the lot in question. To this decision the plaintiff excepted, and comes here with its case-made, asking a reversal of the judgment of the district court.
October 14, 1886, Cupp and wife exchanged 80 acres of land with the defendant Watson for lot 29 in Coppley’s addition to the city of Emporia. The deeds were exchanged by Cupp and wife and Watson and wife on that day, and Cupp and wife on that day went into possession of lot 29, and have ever since continuously occupied it as a homestead. The judgment under which Watson acquired title to said lot was rendered in Lyon county district court, October 26,1886. The first day of said October term, 1886, was October 4th. The mortgage of the plaintiff company was recorded January 28, 1887. Now if the judgment under which the defendant Watson derives title ever became a lien upon lot 29, it was a lien thereon before the mortgage of the plaintiff company attached thereto, and the sale under such judgment gave good title; but if said judgment never became a lien upon said lot, the sale of said lot thereunder conveyed no title. It is admitted under the pleadings that Cupp and wife were on October 14,1886, occupying lot 29 as a homestead, and have continued to occupy it as a homestead ever since. It follows, then, that if said judgment ever became a lien upon said lot, it must have attached thereto on or before the 14th day of October, 1886; but the judgment was not rendered until October 26, 1886. It could not become a lien upon anything before it was rendered, and when rendered by relation back it became a lien upon all the real estate owned by Cupp in Lyon county, not exempt, on the first day of the term at which it was rendered, to wit, October 4, 1886. It did not become a lien by relation back on lot 29 on the first day of the term, or October 4, 1886, because Cupp did not own the lot until the 14th of October, 1886; so if it became alien upon said lot at all, it became such on October 14, 1886. But, as stated above, Cupp, immediately upon the receipt of his deed for the lot, went into possession thereof as a homestead. If, therefore, the judgment in question became a lien upon said lot, the lien must have attached during the brief space of time between the receipt of the deed by Cupp and the occupancy of the lot by himself and family as a homestead. The reply states that at the time Cupp and wife traded for this lot they did so intending to make it their homestead and to occupy it as such immediately. It is well settled in this state and other states, that where a person, the head of a family, purchases a piece of land, intending to make it a homestead for himself and family and to occupy it as such at once, and follows such intention up by immediate occupancy of the premises as a homestead, such land is all the while protected by the exemption provision from judgment liens.
In Edwards v. Fry, 9 Kas. 291, Mr. Justice Brewer used the following language:
“We know that a purchase of a homestead, and the removal on to it, cannot be made momentarily contemporaneous. It takes time for the party in possession to move out, and then more time for the purchaser to move in. Repairs may have to be made, or buildings partially or wholly erected. Now the law does not wait till all this has been done, and the purchaser actually settled in his new home, before attaching to it the inviolability of a homestead. A purchase of a homestead with the view to occupancy, followed by occupancy within a reasonable time, may secure, ah initio, a homestead inviolability.”
Also in Monroe v. May, 9 Kas. 466, the same Justice says:
“The homestead is something towards which the eye of the creditor need never be turned.”
In Swenson v. Kiehl, 21 Kas. 534, Mr. Justice Beewee, upon this subject, again says:
“We do not mean that a party occupying a residence under a lease, must of necessity wait until the exact instant of the termination of that lease before making arrangements for his future home. The law favors homesteads; and arrangements at about the time of the termination of such lease or occupation, and with a view thereto, are for the purposes of a homestead question, considered as made contemporaneous with such termination.”
In Riggs v. Sterling, 27 N. W. Rep. 705, the court says:
“And purchase with intention to use as a residence, followed by actual residence as soon as practicable, will give the premises the character of a homestead from the time of purchase.”
See Gilworth v. Cody, 21 Kas. 702; Mitchell v. Milhoan, 11 id. 617; Colby v. Crocker, 17 id. 527; Reske v. Reske, 51 Mich. 541; Scofield v. Hopkins, 61 Wis. 374; Hanlon v. Pollard, 17 Neb. 368; Crawford v. Richeson, 101 Ill. 351; Harrison v. Andrews, 18 Kas. 535.
It is claimed by counsel for defendant, that as the 80-acre tract of land which Cupp and wife gave in exchange for lot 29 was not a homestead, lot 29 was not purchased with homestead funds, and was therefore not exempt as a homestead. This position is not tenable.
We recommend that the judgment of the district court be reversed, and the case sent back for further proceedings.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The Chicago, Kansas & Nebraska Railway Company instituted proceedings to condemn a right-of-way for its railroad through Harvey county. A strip of land through the farm of I. H. Neiman, amounting to acres, was desired, and the commissioners who had been appointed appraised the value of the land appropriated at $289.60, and estimated the damages for depreciation and injury to adjoining lands not appropriated at $410, making a total of $699.60. Neiman appealed to the district court, where a trial was had with a jury, and where damages were awarded in the sum of $1,611.70. The principal complaint, and the only one that we need notice, is the admission by the court of incompetent testimony. The following question was asked and the answer given over the objections of the railroad company:
“Q,. How much less, in your opinion, was the farm worth after the railroad had established their track through it, irrespective of any benefit to be derived from said track, taking into consideration the damage, present and prospective, the incidental loss, inconvenience, present and prospective, which may reasonably be expected to exist from maintaining the said railroad track, to be continued permanently? A. $2,800 less, or $9,200 afterward.”
A substantially similar question was asked another witness, and an objection was made at the time, but the objection was overruled, and the witness answered: “About $1,300.”
It is contended by the plaintiff in error, that under these rules the province of the jury was invaded by allowing the witnesses to determine, by their opinions, the exact question that the jury was called to decide. The precise question presented was determined by this court in W. & W. Rld. Co. v. Kuhn, 38 Kas. 675. The question asked and answered in that case was almost identical with the one propounded in thisj and the court held that the admission of the testimony was erroneous, and that it was virtually asking the witness to decide the case for the jury, and to advise them what their verdict should be. It cannot be said that the error was an immaterial one, as the witnesses differed widely in their opinions of the values of the property and of the damages suffered. The estimates ranged all the way from $800 up to $2,800, and those witnesses who had assumed the functions of the jury, and lumped the damages suffered, were among those who placed the damages at the highest sum. The reasoning and cases cited in Railroad Co. v. Kuhn, supra, are equally applicable here, and must rule in the present case.
We do not deem it necessary to notice the other points that have been discussed in the case.
The judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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Opinion by
StjrANG, C.:
This was an injunction proceeding under ¶ 2533, General Statutes of -1889. The action was in the name of the state on the relation of the county attorney of Butler county. The state alleged that the premises described in the petition was a place where intoxicating liquors were kept for sale; and where such liquors were sold, bartered and given away in violation of law; and was a place where persons were permitted to resort for the'purpose of drinking intoxicating liquors as a beverage in violation of law; and charged that such place was in consequence thereof a common nuisance; and asked that such premises be adjudged a common nuisance, that the place be abated as such, and that the defendants be perpetually enjoined from using, or permitting said premises to be used as a place where intoxicating liquors are sold, bartered or given away, or kept for sale, or a place where persons are permitted to resort for the purpose of drinking intoxicating liquor as a beverage in violation of law. A temporary order of injunction was allowed July 16,1887. September 1,1887, the ease was tried by the court, which found the allegations of the petition true as therein set forth, and entered a judgment perpetuating the injunction, and for costs against the defendants therein.
The petition alleges that the defendant James Ryan was the owner of the building complained of, but we find no evidence in the record connecting him with the building, nor in any other way with the case. It follows that the finding of the court below, so far as it relates to Ryan, is not supported by any evidence, and that the judgment as to him must be reversed, with costs.
J. M. Anderson is made a defendant in the petition, and it is alleged that he was a member of the firm of Sickinger & Co., but there isnoevidenee tosupport the allegation. Through all the evidence in the record relating thereto, the firm is re ferred to as Sickinger & Johnson. Neither the counsel nor any of the witnesses refer to Anderson, but they frequently refer to the firm having charge of the building complained of as Sickinger & Johnson. There being no evidence to connect Anderson with the case, the finding of the court as to him is erroneous, and the judgment based thereon must be reversed, with costs. As to the other defendant, Sickinger, the only question is, Does the evidence sustain the finding and judgment of the court below? There is a conflict in the evidence, and as the trial court passed upon the testimony and held it sufficient, this court will not undertake to determine the weight of such conflicting evidence. (Peacock v. Boyle, 41 Kas. 492; Weil v. Eckart, 37 id. 696.) It follows then, that if there was evidence to support the finding and judgment of the court as to the defendant Sickinger, they should not be disturbed, even though an apparent preponderance of the evidence was against such finding and judgment. (The State v. Alten, ante, p. 101, 25 Pac. Rep. 224; Harrington v. Stone, 39 Kas. 176; Weir v. Plow Works, 36 id. 460; Stratton v. Hawks, 23 Pac. Rep. 591; Gafford v. Hall, 39 Kas. 166; McKinney v. Ward, 39 id. 279; K. P. Rly. Co. v. Kunkel, 17 id. 145, and cases there cited, including cases from a large number of the states of this country.) The evidence clearly connects Sickinger with the place complained of, as one of the keepers thereof. It also clearly shows that he sold, to be drunk as a beverage, on the premises, Young’s extract of malt.
Dr. Kuhn testified that he analyzed the liquor sold, and found it to contain a sufficient quantity of alcohol to render it intoxicating. He says he analyzed some beer, and found it contained about the same amount of alcohol. Dr. Gill says it contained sufficient alcohol to render it intoxicating. E. D. Stratford drank some of it, and says it was intoxicating; that in his judgment it was beer. W. H. Hardin said “it tasted like beer.” R. D. Hyde testified it “tasted some like beer.” Smiley, another witness, said it made him “kinder sick.” Combe, a witness, saw two men at the place complained of) drank. Dr. Kuhn, a witness on behalf of the state, and Prof. Lovewell, a witness for the defense, united in saying that the article, the sale of which was complained of, was a malt liquor, and also a fermented liquor. This evidence of itself, under our statute, makes the material prima facie intoxicating, and greatly strengthens the case of the state. In the face of such evidence, this court cannot disturb the finding and judgment of the court below as to Sickinger, without overruling the cases cited from our own court, which are in harmony with the courts of many other states, as will be seen by an examination of the exhaustive citation of authorities, in the opinion of Judge Brewer in K. P. Rly. v. Kunkel, supra.
It is recommended that the judgment of the district court be reversed as to the defendants James Ryan and J. M. Anderson, with costs; and that as to the defendant Martin Sick-iuger, the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
GreeN, C.:
Casper Mahler brought his action against the Kansas, Nebraska & Dakota Railway Company to recover $2,000 damages for building its line of railroad in front of two lots on Barbee street, in the city of Fort Scott, in such a manner as to obstruct his ingress to and egress from his premises and dwelling. At the December term, 1887, a verdict and judgment were obtained for $800 against the plaintiff in error, and it now seeks a reversal of the same and claims manifest error.
The plaintiff in error had the right, under a city ordinance, to build its road in Barbee street, which was sixty feet wide, and the special findings of the jury indicated that at the nearest point the railroad track was twenty-five feet from the plaintiff ’s property. The measurement of the city engineer showed the space to be from twenty-seven and a half to thirty-two feet from the line of the lot upon which the dwelling was located to the track of the plaintiff in error. The facts, as they appear in the record, bring this case within the rule laid down in K. N. & D. Rly. Co. v. Cuykendall, 42 Kas. 234; and W. & C. Rly. Co. v. Smith, ante, p. 264.
The above cases settle the questions involved in this case, and, upon the authority of those cases, we recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
SimpsoN, C.:
The defendant in error commenced three several suits before a justice of the peace of Garnett, Anderson county, Kansas, and judgments were taken and the cases appealed to the district court, where the cases were consolidated and tried as one case. The several suits were for damages alleged to have been sustained by defendant in error for failure to put in and maintain cattle-guards on the line of road running through defendant’s premises, which were particularly described in the bills of particulars. It is alleged in the several bills of particulars that the Missouri Pacific Railway Company owned, operated and controlled the railway running through the premises of Flora R. Ricketts. The Missouri Pacific Railway Company denied that it owned or controlled a line of railway running through the premises of Mrs. Ricketts, and says that it is not liable for a failure to construct cattle-guards on said railway. At the September term, 1887, the case was tried before the court and jury. The jury returned answers to special interrogatories as follows:
“1. What was the value of the services of Flora R. Ricketts per day for what she did about herding the cattle out of her crops ? A. 60 cents per day.
“2. How many days did Flora R. Ricketts spend in and about herding her crops ? A. One hundred and twenty-five days.
“3. Did Flora R. Ricketts devote all of her time to the keeping the cattle out of her crops ? A. No.
“4. What do you allow Flora R. Ricketts, if anything, per day for herding the cattle out of her crops? A. $1 per day.
“ 5. What amount do you allow plaintiff for her children in searching her crops to keep cattle out of the crops ? A. 50 cents per day.
“ 6. What amount do you allow plaintiff for the destruction of the oats crop? -A. $5.33£.
“ 7. What amount do you allow plaintiff for loss of corn ? A. $10.66f.
“8. Did the plaintiff keep the cattle out of her crops from the 1st day of April, 1887, to the 1st day of August, 1887? A. No.
“ 9. Who owns the railroad which runs through the land on which plaintiff’s crops were injured ? A. Missouri Pacific Railway Company.
“ 10. Did the plaintiff devote all her time to watching and herding the cattle out of her crops from April 1, 1887, to August 3, 1887? A. No.
“11. Did plaintiff attend to her usual household duties during all the time from April 1, 1887, to August 3, 1887, and watch the field from her house, and when the cattle came to the field send her children to drive the cattle away ? A. No.
“12. Did the plaintiff have any person herd or watch her crops from April 1, 1887, to August 3,1887, except her children— one of about 12 years of age, and one of the age of about 9 years? A. No.
“13. What amount in the aggregate for damages to crops by cattle in this action ? A. $14.
“ 14. What amount do you allow to plaintiff in this action in the aggregate, in addition to the amount allowed as damages to the crops? A. $125.”
A judgment was rendered in favor of Mrs. Ricketts for $139.
I. After the plaintiff below had introduced all her evidence and rested her case, the railway company filed a demurrer to her evidence, for the reason that the evidence on behalf of the plaintiff did not- prove a cause of action in her favor, which demurrer was overruled by the court, and defendant excepted to the judgment of the court in overruling said demurrer. This is the first error complained of.
Robert Wing, the station agent of the Missouri Pacific Railway Company at Garnett, was called as a witness, and after testifying to his agency, stated that on the 1st day of April, 1887, the Missouri Pacific Railway Company was operating the K. N. & D. line through Anderson county, and had been since about the 1st day of March; that they ran trains, collected fares and charges, and had full control. In view of this showing, we think the trial court ruled properly on the demurrer to the evidence. In the case of Mo. Pac. Rly. Co. v. Morrow, 32 Kas. 217, it is said:
“It is always the duty of a railroad company operating a railroad, to see that proper cattle-guards exist whereyer its railroad enters and leaves improved or fenced land, whether such railway company owns the railroad or is simply operating it under a lease.”
II. It may be that there is not sufficient evidence to justify the jury to say in answer to the ninth special interrogatory, that the Missouri Pacific Railway Company owned the line that runs through the land of Flora Ricketts, but as there was proof that it was being operated by that company its ownership is immaterial.
III. It is claimed that the amount of recovery is too large; that if the plaintiff below undertook to protect her crops at the expense of the railroad company she should not be allowed for injury to the crops. This objection is covered by the cases of St. L. & S. F. Rly. Co. v. Sharp, 27 Kas. 134; and the same company v. Ritz, 33 id. 408, which hold substantially, that for damages resulting by the omission of the railroad company to perform a plain duty under the statute, the injured party has the right to include in his claim for damages the value of his services in driving out and herding stock to prevent further and additional damages. The cases cited are sufficient in all respects to sustain the rulings and judgment of the trial court.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
StkaNG-, C.:
This action was instituted February 15th, 1887, by the above-named defendants, to restrain the plaintiff from interfering with a certain graveyard in Neo-sho county, known as “Valley Cemetery.” A temporary injunction was allowed, and upon the trial of the case, August 1, 1887, the court found for the plaintiffs below, making the injunction perpetual. Motion for a new trial was overruled.
There are two questions raised in the record, one arising upon a demurrer to the petition which was overruled, in which it was claimed there was a misjoinder and non-joinder of parties; and also a misjoinder of causes of action. The questions growing out of the action of the court in overruling the demurrer were abandoned by the plaintiff in error before filing his brief, as he says therein in his statement of the case: “The only question then to be determined by the court was as to the claim of dedication — was there a dedication on the part of the owner of the fee, ánd was such dedication accepted by the public?” The question thus raised, the court below answered in the affirmative.
We do not see how we can reverse the action of the court in this respect. There is evidence in the case proving, or tending to prove, both a dedication and acceptance thereof for the purpose of a public cemetery. It is conceded that Jarritt, who first settled upon the quarter of land, to which the land taken for a cemetery originally belonged, dedicated at least a portion of the land now occupied as a cemetery to the public for that purpose, so far as he could do so. He did not own the land in fee, however ; he was simply a settler upon the land, which was school land, and the title was in the state of Kansas. Jarritt sold his settler’s right to the land to one J. A. Auton, who purchased the land of the state, and obtained a patent therefor in 1873. Jarritt settled upon the land in 1867. Auton, having obtained a patent to the land, owned it in fee, and had the power to dedicate the land for a cemetery, or for any other purpose. The public was already using said land for a cemetery when Auton purchased Jarritt’s right to the land, and after he became the owner in fee, he recognized and ratified the dedication of the original acre for cemetery purposes. J. A. Huston, in his testimony, says: “ I said to Auton that the plat was not large enough; that it was a matter the whole neighborhood was interested in, and he said Jarritt reserved it and dedicated it as a burying-ground.”
V. Reddick, a witness, testified that he worked for Auton; that Auton instructed him, in setting out the hedge for a fence, to stop when he got to the graveyard; that he was not to set any further than the graveyard. There could hardly be any question after that but that there was a sufficient dedication of the first acre of land then used by the public for a cemetery; and no question as to its acceptance by the public for that purpose. Using the ground for the purpose of burying the dead, by the public, constituted an acceptance.
As to the additional acre, the evidence shows that the public were encroaching upon it by burying the dead, beyond the limits of the original acre, before Auton left the premises. He talked with the people of the neighborhood about it, and said he would sell the land to them. He never objected to the use of the ground as a place of burial for the dead. Auton sold to Clark and Ketchum. He told them there was a burying-ground there, but that the land had not been paid for. The public continued to bury the dead of the neighborhood in this cemetery after Clark and Ketchum took possession of the farm. They never objected to the use of the ground for that purpose. While they were in possession, there was talk of the people buying both acres of the ground occupied by the ■cemetery of them. At that time the land was surveyed, staked off and platted, but the plat was never recorded, and the land was never paid for, nor did they object to its continual use as a cemetery. They sold the farm to Morris and Morris, who occupied it awhile. During their occupancy, the public used the grounds as before, without objection by them. They sold to one Guss, who held the land but a short time, and conveyed to plaintiff in error in 1886. Guss, through whom the title passed to the plaintiff in error, was the surveyor who made the survey of the cemetery land when Clark and Ketchum owned the farm. We think Clark and Ketchum dedicated the second acre to the public as a part of the graveyard when it was surveyed and staked out, and they permitted the public to use it for burial purposes. It is true they were never paid for the land. But after they had joined in a survey of the land, and it had been staked out, and thus, by them, turned over for cemetery purposes, and they sat by and saw the public using it for burial purposes without objection, the fact that they were not paid therefor would not interfere with the dedication of the ground to the public; and as the public accepted it, and used it with their knowledge, and without any objection on their part, they would have been estopped from saying the ground was not dedicated to the public. But they never raised the question, nor did their grantees; nor the successor of their grantees; nor did anyone question the right of the public to use and occupy the ground as a cemetery until the plaintiff in' error purchased the land, in 1886, about twenty years after the cemetery was started.
We think that, whether the land was ever paid for or not, the fact that it was used, a part of it for twenty years, and all of it for many years, as a resting place for the dead, without objection by any one of the numerous owners of the tract from which it was taken, is sufficient to vest in the public a right superior to any that the plaintiff herein could get by purchase of said original tract with full knowledge of the existence of the cemetery when he purchased. Permission by his grantors to use and occupy the ground as a cemetery was a waiver or abandonment of their rights, which subordinated them to its use by the public, and the plaintiff, having purchased with knowledge of the occupancy of the public, is bound by it. (Boyce v. Kalbaugh, 28 Am. Rep. 464; Hagaman v. Dittmar, 24 Kas. 42; Giles v. Ortman, 11 id. 59; Brooks v. City of Topeka, 34 id. 277; Beatty v. Kurtz, 2 Pet. [U. S.] 566; Davidson v. Reed, 53 Am. Rep. 613.)
We advise 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.:
Baxter commenced this action before a justice of the peace in Dickinson county, to recover from the railway company for killing and injuring certain sheep belonging to him. The case was tried before the justice, and then appealed to the district court. A trial was had before a jury at the October term, 1887, anda verdict and judgment rendered in favor of the defendant in error for $90 damages and $33 attorney fees. At the trial in the district court it was shown that Baxter kept about three hundred and twenty sheep in a large pasture, through which the track of the defendant’s road was located. This pasture was in one enclosure, and fenced with a barb-Wire fence, sheep-tight. The fence consisted of five wires, stretched tightly from post to post, the posts being two rods apart. The top wire is about four feet from the ground; there is a space of fifteen inches between the first and second wires; a space of ten inches between the second and third wires; and a space of about nine inches between the third and fourth wires; and a space of from five to seven inches between the fourth and fifth wires, the latter wire being about four inches from the ground. The railroad track running through the pasture was not fenced. On the 10th day of April, 1887, twelve sheep were killed and seventeen injured by the engine and cars of the railroad company. These were all killed or injured in the pasture. The negligence of the railroad company consisted of the fact that it had neglected to fence its track. When the plaintiff below rested his case, the attorneys for the railroad company demurred to his evidence, and the overruling of this demurrer is their first assignment of error. The theory of the demurrer was, that if the railroad company had enclosed its track with a fence composed of posts and three wires, it would not have prevented the sheep from going onto the railroad track. All the law requires of a railroad company, to escape the charge of negligence, is the construction of a lawful fence; if such a fence, as a matter of fact, would not prevent the sheep from getting on the railroad track, yet the compliance of the company with the statutory requirement would relieve it from all damages. The law declares the material, height and construction of a lawful fence. Its function is to secure the growing crops, the grass and the live stock of the land-owner from injury aud damage. As a matter of legal presumption, a lawful fence is amply sufficient to protect the track from the invasion of live stock and trespassing animals. The defendant in error, on cross-examination, virtually admitted that a fence whose lower wire was two feet from the ground would not be a protection to all the sheep; that some could pass under the lower wire of such a fence.
The railroad stock law of 1874 imposes an obligation upon railroad companies to*fence their tracks against all animals against which a good and lawful fence would be a protection. (Mo. Pac. Rly. Co. v. Roads, 33 Kas. 640; Mo. Pac. Rly. Co. v. Bradshaw, 33 id. 533.) Whenever it is shown that a railroad has not-been fenced, and that an animal has passed upon the track and been killed, a prima facie case has been made out against the railroad company. (Mo. Pac Rly. Co. v. Bradshaw, 33 id. 533.) How legal fences are to be constructed is plainly set forth in chapter 40, General Statutes of 1889. The contention in favor of the demurrer to the evidence in this case assumes that a post-and-wire fence,'such as is described in ¶ 3062 of the General Statutes, is the fence that a railroad company is obligated to build, whereas the law requires such a fence as will keep all animals off of the track. There was no showing as to whether hogs were permitted to run at large in the township in which the pasture was situated, and we think it was incumbent upon the railroad company to show affirmatively what would have been a legal fence in that township, and that such a fence, if built, would not have kept the sheep away from the track, in order to escape liability. There was no error in overruling the demurrer to the evidence. Exceptions were taken to certain instructions given by the court, but the brief only criticises the seventh. It says:
“It is not a question of negligence; the question is, Did they have their railway fenced? if they did not, and if they killed this man’s sheep on his premises, and failed and neglected to fence their right-of-way as it ran through his pasture, then they are liable to pay him the full value of the animals killed or injured.”
It being incumbent upon the railroad company to show a lawful fence, or, if it had a lawful fence, that it would not have kept the sheep off the track, and no such showing having been made, the instruction is not error.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
StraNC?, C.:
This is an action brought by the plaintiff to recover damages for injuries received by the plain tiff’s intestate, through the alleged negligence of the defendant, in operating its train of cars, from the effects of which he died. The defendant was, on the 27th day of August, 1886, running its train of freight cars south, over its line, from Pleasanton to Fort Scott. At Pleasanton, the deceased, Willie Hendryx, went into a box-car of said train, to steal a ride to Fort Scott. There was one other person in the car with him, called in the evidence in this case a “tramp.” At Hammond station, six miles north of Fort Scott, the hind brakeman of the train closed the doors of the car, while the boy and his companion were still in the car. From Hammond the train ran to the M. K. & T. junction near Fort Scott, where it stopped a short time, and then pulled up a short distance, and stopped again. After pulling up, Willie Hendryx was found on the track in the rear of the train, seriously injured. He was taken home to Pleasanton, where, notwithstanding he was carefully nursed and properly attended by physicians, he died on the 12th of September, 1886. The evidence in the case consisted wholly in an agreed statement, and the depositions of two witnesses, who also got onto said cars at Pleas-anton and rode to Fort Scott. There was no conflict in the evidence. Not a single question of fact was contested in the whole case. The defendant demurred to the evidence of the plaintiff, and the court sustained the demurrer, and entered judgment for the defendant. Motion for new trial was heard and overruled.
There is but one question in the case, and that grows out of the theory of the plaintiff, as to the cause of the death of the plaintiff’s intestate. The plaintiff claims that when the brakeman shut the doors of the car at Hammond, the deceased became alarmed, and in his fright attempted to climb out of the window in the end of the car to the ground, and in so doing fell, and was run over and injured. Plaintiff says the shutting of the doors of the car by the brakeman, with deceased and his companion in the car, was such an act as rendered the defendant guilty of negligence in connection with the injury of said Willie Hendryx, and liable in damages there for. The undisputed evidence shows the deceased was a trespasser on the defendant’s train. The only duty, then, that the company owed him was not to wantonly injure him. (Toomey v. S. P. Rld. Co., 24 Pac. Rep. 1070; Mason v. Mo. Pac. Rly. Co., 27 Kas. 83; Railroad Co. v. Rollins, 5 id. 167; Pierce on Railroads, 330; Palmer v. Rld. Co., 14 N. E. Rep. 70; A. T. & S. F. Rld. Co. v. Lindley, 42 Kas. 714; S. K. Rly. Co. v. Sanford, just decided; A. T. & S. F. Rld. Co. v. Gants, 38 Kas. 621; Railroad Co. v. Pointer, 14 id. 37; Taylor v. Clendening, 4 id. 524; 15 N. Y. 456; 47 Iowa, 82; 48 Ind. 90.)
The only act on the part of the railroad company that is complained of, was the closing of the doors of the car in which deceased and companion were at the time, by the brakeman of the train. What evidence is found in such act on the part of the brakeman of any malice toward the deceased? or of any wanton or reckless disregard of his rights? In what manner did the closing of such doors place the deceased in danger? The car was empty. He did not freeze nor smother therein. He could not have been afraid of his companion, because he had ridden past several stations, at each of which the train had stopped, before the door was closed, and still remained in the car. He knew the train would’stop at Fort Scott, where he was going. There is nothing in the evidence to show that the doors of the car were locked or otherwise fastened on the outside, and nothing to show that the deceased could not have readily opened them from the inside and stepped out whenever he desired to. There is nothing to show that he did not so leave the ear, there being no evidence to show how he got out of the car. His companion suffered no injury in getting out of the car, so far as the record shows. And there is not a word of testimony tending to show that deceased was injured in any way while getting out of the car. He was found in the rear of the train, on the track, injured. But how he came to be there, no one knows. The theory of the plaintiff below is, that he was alarmed when shut in the car, and attempted to get out of the window in the end of the car and fell, and the train, or part of it, ran over him. There is no evidence, however, to support this theory, unless it can be said that the bare fact that the doors of the car were closed by the brakeman supports it. The deceased may, so far as any evidence shows, have emerged from the car through the door, and, after getting out upon the ground, have slipped and fell under the train. And, as he got on the car while the train was in motion, he may have jumped from the car out of the door, while the train was in motion, and been carried off his balance by the motion of the train, and fallen under the cars and thus been hurt. But it is idle to speculate as to how he emerged from the car, or how he was hurt.
It is enough to say that there must be some evidence of wrong on the part of even a railroad company, before it may be mulcted in damages. There is no evidence that the brakeman knew that anyone was in the car. It is true a witness said the brakeman knew, but later, when he disclosed the source of his knowledge, it turned out to be a mere inference of his. He said, also, that he did not see the brakeman look into the car. .
We think the evidence in this case barren of anything showing any wrong on the part of the company or its agents, and that there was, therefore, nothing to submit to a jury. It follows that the demurrer to the evidence was rightfully sustained. It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
GjseeN, C.:
On the 1st day of August, 1887, the plaintiffs in error commenced this action in the district court of.Lyon county, to quiet the title to the southwest quarter of the southeast quarter and the east half of the southwest quarter of section 23; also two and seventy-four one-hundredths acres in the northeast quarter of section 27, all in township 16, of range 12, alleging in general terms that they were in possession, and that the defendants set up and claimed an estate and interest adverse to plaintiffs’ title. The defendants answered by denying generally the petition, and claimed that they were the equitable owners of the land, and by way of a cross-bill alleged possession of the premises, claimed adverse to the plaintiffs, and asked for affirmative relief by way of annulment of plaintiffs’ title, and that their title be quieted. At the February term, 1888, the case was tried by the court and the following conclusions of fact máde:
“1. On and before May 27th, William Lewis owned the land in controversy.
“ 2. Glendenning & Sawyer were real-estate agents at Admire, Kansas, and were, by the said Lewis, duly authorized to sell said land.
“3. On June 6, 1887, said agents sold said land to the plaintiffs, by contract in writing; said writing consisted of the letters and telegrams in evidence, which were written and signed by the said plaintiffs and by said agents of the said Lewis, Glendenniñg & Sawyer; the said plaintiffs paid on said contract th'e sum of $100 at the time it was made, and were able, ready and willing to pay the remainder of the purchase-price upon the receipt of the deed from said Lewis for said land.
“4. Immediately after closing said sale, and on June 6, 1887, said agents informed said Lewis of said sale by mail; Lewis resided at Lerado, Reno county, Kansas.
“5. The land in controversy is located within one and one-half miles of the village of Admire, in Lyon county, Kansas, and the defendants all reside in said village of Admire, near said land.
“6. On J une 8, 1887, at Lerado, Kansas, said Lewis made an agreement with one T. D. Griffith, who was agent of the defendants, to sell said land to the defendants upon the terms and conditions stated in the bond for a deed, a copy of which is attached to defendants’ answer in this action, and to which reference is here made; and the said-T. D. Griffith, as agent for the said defendants, then paid to said Lewis the sum of $200 cash, and executed the defendants’ negotiable notes for the $800 and the $1,000 mentioned in said bond.
“7. At the time of the execution and delivery of said bond for a deed, and payment of said $200 and the execution of said notes as aforesaid, neither the said defendants nor their said agent, T. D. Griffith, had any knowledge or notice whatever of the aforesaid purchase by the plaintiffs.
“8. On June 18,1.887, the defendants duly filed their said bond for deed in Lyon county, Kansas, for record, it having been duly acknowledged when executed.
“9. On June 20, 1887, Lewis having heard of the aforesaid sale to the plaintiffs, carried out the same by executing to them a general warranty deed to said land; said deed contained among other recitals the following, viz.: ‘The above described land is free and clear of all incumbrances whatever, except a mortgage of $1,700 on same land, together with a bond for a deed held by Griffith and Brown on said land.’ The plaintiffs, in consideration of said deed, paid Lewis the purchase-price agreed upon by them with the said Glenden-ning & Sawyer, on June 6, 1887, as aforesaid; said payment was made in cash, and amounted to the sum of $1,800; the plaintiffs, to procure said deed, indemnified Lewis against loss on account of the said sale to the defendants; the plaintiffs duly recorded said deed June 25, 1887.
“10. At the time of the foregoing transactions said land was in the actual possession of a tenant of Lewis, who was entitled to the possession thereof until March' 1, 1888; said tenant, after June 20, 1887, sold out his right to plaintiffs, surrendered possession of said land as said plaintiffs’ tenant, and was so in possession when this suit was begun.
“11. After said purchase and possession by the plaintiffs as aforesaid, the defendants, claiming said land, entered thereon and began prospecting for coal, and were so prospecting thereon when this suit was begun.
“12. Lewis, after the delivery of the deed to the plaintiffs and before this suit was brought, tendered to the defendants the cash paid and the notes given by them, which they refused to receive.
“13. After this suit was brought, the defendants tendered full payment of the notes given to Lewis and demanded a deed, which was refused.
“14. On June 4, 1887, W. H. Brown, one of the defendants, and the aforesaid T. D. Griffith, went to the land in controversy and there inquired of the said tenant then living on said land as to the residence of Lewis, and were informed by said tenant that said Lewis resided at Lerado, Kansas; they were also informed at said time that the aforesaid Glendenning & Sawyer, real-estate agents at Admire, Kansas, were trying to get the agency for the sale of said land.
“15. On the 7th day of June, 1887, said Griffith left Admire and went to Lerado, Kansas, and there concluded the transaction mentioned in conclusion number 6 herein. Neither Griffith nor said defendants made any inquiry of said Glen-denning & Sawyer concerning said land before said Griffith left as aforesaid. It is about two hundred miles from Admire to Lerado.
“ 16. The plaintiffs, prior to and at the time of all the foregoing transactions, were the managing officers of a coal company operating at the said village of Admire, and the aforesaid Glendenning & Sawyer were the local agents of said coal company at Admire, and superintendents of its business.”
Upon the above findings, the court held as a conclusion of law, that the defendants below were entitled to the land, and rendered judgment quieting the title in defendants and for costs against the plaintiffs, who bring the case here.
The first contention is, that the defendants did not prove that they were in possession of the land at the commencement of the action, and hence, could not have affirmative relief; that according to the findings, the plaintiffs were in possession. The situation in regard to the possession of this land was somewhat peculiar. It appears from the evidence and special findings, that William Lewis owned the land in controversy in May, 1887; on June 6th, Glendenning & Sawyer, as agents of the owner, sold the land to the plaintiffs; two days after this, Lewis gave the defendants a bond for a deed for the same land, in which it was stipulated that the defendants were to have the landlord’s share of all of the growing crops and fruit from the place, except fifty dollars of the proceeds of the orchard; the farm was in the actual possession of a tenant, who was entitled to remain in possession until the 1st of March following; on the 18th of June, the defendants filed their bond for a deed in the office of the register of deeds of Lyon county, it having been properly acknowledged; about the 20th of June the defendants, with the consent of the tenant, went upon the land to prospect for coal; on June 20, Lewis made a deed to the plaintiffs, containing the recitation set out in the ninth finding; sometime after this, the tenant sold out his right to the plaintiffs, but still remained on the place, and plaintiffs in error claim that he continued to hold the actual possession of the land as their tenant.
Let us see how this could affect the rights of the defendants. This sale took place the 5th day of July; the defendants held a bond for a deed, which was of record some days before this, for the land, and the right to the landlord’s share of the crop, except fifty dollars of the proceeds of the orchard. Could this sale, by the tenant of Lewis, interfere with defendants’ possession, or confer any rights upon the plaintiffs, who took a deed after the recording of this bond for a deed, with an express recitation therein that the conveyance was made subject to this instrument, and to procure the same the plaintiffs were obliged to indemnify the former owner against loss, and the tenant could not, under §11 of the landlord-and-tenant act, transfer his interest, or any part thereof, to another, with out the written assent of the landlord, or person holding under him ? (Gen. Stat. of 1889, ¶ 3620.)
We think, under this bond for a deed, the defendants below held the equitable title to the land and owned the landlord’s interest in the lease, and the evidence and special findings show a sufficient possession to entitle the defendants to a decree quieting the title, as against the plaintiffs.
We see no reason for disturbing the judgment of the court below, and recommend an affirmance thereof.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
The defendant in error sued the plaintiff in error in the district court of Osborne county to recover the sum of $381, with interest at 7 per cent, from March 1, 1887. He alleged in his petition that on the 1st day of February, 1887, he sold and conveyed to the plaintiff in error lot 6, in block 6, in the town of Bloomington, in said county, and a small stock of goods and merchandise; that as a part consideration for the lot and goods so sold, the plaintiff in error agreed to pay a certain note given by W. H. Snyder to S. S. Warren, secured by mortgage on lot 6, the payment of which the defendant in error had assumed and was bound to pay; that said note was past due at the time of the sale from defendant in error to plaintiff in error, and judgment had been obtained on it and said lot ordered sold; that the plaintiff in error had paid all the purchase-price of said lot and goods except the note secured by mortgage on said lot; that Warren caused said lot to be sold, but he only realized on the sale the sum of $89, and' the defendant in error was compelled to and did pay the balance of said judgment, amounting to the sum sued for. The plaintiff in error filed an answer generally denying all the allegations in the petition. Trial was had at the October term, 1887, and the material facts are recited in the following findings of the district court:
“FINDINGS OF FACT.
“1. On the 1st day of May, 1886, the plaintiff became the owner of lots 6 and 7, in block 6 of the town-site of Bloom-ington, county of Osborne, state of Kansas, by purchase of the same by deed of conveyance of same by W. H. Snyder and S. C. Snyder, his wife, A. I). Booze and L. Booze, his wife. In said deed of conveyance it was stipulated that the plaintiff, Dorsey McClellan, should assume the payment of the mortgage of $375, with interest from that date; that on the 26th day of February, 1887, in an action then pending in the district court of said Osborne county, a judgment of foreclosure was rendered in an action in which S. S. Warren was plaintiff and Dorsey McClellan and Ann McClellan, W. H. Snyder and wife, and A. D. Booze and wife were defendants; judgment of foreclosure was rendered — judgment of $395 and costs, and interest at 8 per cent, on the judgment, and foreclosure ordered to the property mortgaged to secure said amount so ordered to be sold. Personal judgment was not rendered against Dorsey McClellan and wife, but only a judgment of foreclosure; that the mortgage foreclosed in said action, and upon which said judgment was rendered, included with other property lots 6 and 7, in block 6, in the town^site of Bloomington, Osborne county, Kansas; that a short time prior to the 23d day of March, 1887, the plaintiff contracted to sell and did sell to the defendant a stock of goods and merchandise situated in building on lot 6, block 6, in said town of Bloomington, and in which he, McClellan, had a half interest, and also in the same transaction contracted to sell lots 6 and 7, block 6, in the town of Bloomington, as aforesaid, to the defendant, Hal. W. Neiswanger; that as a part of the consideration of the purchase-price of said lots and stock of merchandise, the defendant, Hal. W. Neiswanger, contracted to assume the payment of the judgment and costs above described; that during the entire transaction no mention had been made to the plaintiff, Dorsey McClellan, that the purchase was being made in the interest of any other person or for any person than the defendant himself; the defendant took possession of the goods and drew a part of them, at least, to Osborne prior to the 23d day of March, 1887; that prior to the 23d day of March, 1887, defendant prepared a deed for the plaintiff, Dorsey McClellan, and Ann McClellan, to execute for lots 6 and 7, block 6, in the town-site of Blooming-ton, Osborne county, Kansas; that said deed was prepared conveying said lots to David Neiswanger, instead of Hal. W. Neiswanger; that said deed contained the usual covenants of warranty with the following exception: 'Except judgment of $395, with interest at 8 per cent., and costs of $6.80, which party of the second part assumes;’ that the plaintiff, Dorsey McClellan, was unable to read the deed for himself, and that the defendant, Hal. W. Neiswanger, read the deed to McClellan and wife as.running to himself, Hal. W. Neiswanger, and with the exception as above found; that the deed was signed by Dorsey McClellan and Ann McClellan on the 23d day of March, 1887, and acknowledged before Hal. W. Neiswanger, notary public, on that day; that as the deed now appears the exception in the general warranty reads: 'Except judgment of $395, with interest at 8 per cent., and costs of $6.80, which party of the first part assumes;’ that the court finds from the evidence this change has been made since the execution of this deed. This action was begun by the plaintiff on the 12th day of July, 1887, and the said deed from McClellan and wife to David Neiswanger was filed for record in the office of the register of deeds of Osborne county, Kansas, on the 12th of August, 1887, at 9 o’clock a. m. ; that on the 8th of April, 1887, an order of sale was issued by the clerk of the district court of Osborne county for the sale of the property described in the mortgage and foreclosure in the above-mentioned action; that the same was returned, no sale being made; and that on the 6th of June, 1887, another order of sale was issued, upon which the sheriff of said county proceeded and did sell lots 6 and 7, in block 6, in the town-site of Bloomington, in said county, and that the said lot 6 was sold to W. H. Snyder for $88, and that lot 7 was sold to Hal. W. Neiswanger for $15; that at the date of said sale said judgment and interest amounted to $406.67, and the costs of suit to|that time, $26.90; that by the sale of said lots was realized $103, the judgment and costs at that time amounted to $433.57, the amount realized from the sale of the lots, $103, which leaves a balance of $330.57; the interest on that amount to date is $9.77; the total to date, $340.34; that the sale made under said order has since been confirmed by the said district court, and deeds to said lots made by the sheriff in pursuance of said sale; that the remainder of said judgment was paid by W. H. Snyder, and that the plaintiff, Horsey McClellan, has paid W. H. Snyder the full amount of said judgment before the beginning of this action; that the deed above mentioned, executed on the 23d day of March, 1887, from Dorsey McClellan and Ann McClellan, his wife, to David Neiswanger, was immediately delivered to Hal.. W. Neiswanger, and has not since been in the possession of the plaintiff; that the change in the ■ covenant of warranty was made, without the knowledge of plaintiff; also, that neither party to the suit knew of the mistake in the description of the lots until very recently, and long after the.commencement of this suit.”
“CONCLTTSION op law.
“The court finds as a matter of law that the plaintiff is entitled to recover from the defendant the sum of $340.34, with interest from this date at 8 per cent., and costs.”
A motion for a new trial was filed and overruled, and the court made these additional findings:
“The court finds that the deed made by Dorsey McClellan and wife to David Neiswanger was not filed for record until sometime after the bringing of this action; that the plaintiff was ignorant of the fact that there was any mistake in the description of the lands intended to be conveyed, and of the fact that said deed ran to David Neiswanger; that the defendant was also ignorant of the mistake in the description of the lots until a few days before the commencement of this trial; that the plaintiff had no actual knowledge of the mistake in the description, or that it ran to David Neiswanger, until the commencement of this trial; that during the trial, when the fact was made known to the court that there was a mistake in the description of the lots intended to be conveyed, the court offered to require the plaintiff to amend his petition to conform to the facts proven in this particular, and to tender a deed conveying the lots intended to be conveyed; that the defendant’s attorney at that time did not demand such deed; that on the argument of the motion for a new trial the attorney of the defendant, among other things, complained that no deed had been executed or delivered conveying to the defendant or other person from the plaintiff the lands described in the plaintiff’s petition.
“Whereupon the court required the plaintiff to bring into court properly acknowledged and executed a deed conveying to the defendant the lots intended to be conveyed in the original deed, conveying all the right that the plaintiff had on the 23d day of March, 1887, with general covenants of warranty against all encumbrances except the judgment in question in this action; whereupon the attorney of the defendant stated at the time that the defendant did not waive any rights which he may have or which he may have had by reason of the fact that the deed was not executed and delivered before the commencement of this action; whereupon the plaintiff and wife tendered to the said defendant a deed to lots 6 and 7, in block 6, in the town of Bloomington, said deed containing a stipulation that the grantee assumes to pay said judgment; whereupon the said defendant refused to accept said deed, and stated as a reason therefor that the same did not conform to the agreement of the parties nor the order of the court; whereupon the court directed the plaintiff to execute and deliver to the defendant a deed conveying said lots without including in said deed the aforesaid stipulation, ‘that the grantee assumes to pay said judgment,’ which the plaintiff accordingly did on the 28th day of October, A. D. 1887, said deed being executed and acknowledged by both plaintiff and wife to the said defendant, which deed was delivered to the defendant; whereupon the court on the 28th day of October, 1887, overruled said motion for a new trial.”
The case is brought here for review, and numerous errors are assigned, and among them it is claimed that the facts set forth in the petition are not sufficient to authorize any judgment against the plaintiff in error. The precise question with respect to this contention is, that there is no allegation in the petition with whom the contract was made assuming the payment of the indebtedness to Warren. There is this allegation in the petition, following the statement, that the plaintiff below had sold to Neiswanger lots 6 and 7, in block 6, and a stock of merchandise, and that in part payment of the same “the said defendant agreed to pay and discharge a certain note given by one W. H. Snyder to one S. S. Warren, which note was for the sum of $375, and interest and costs due thereon, and was secured by a mortgage on said lot, and the payment of which note this plaintiff had assumed.” It is plain from this statement that the agreement was with the plaintiff, and that the allegation was sufficient to support the judgment.
The next contention is that the promise to pay the mortgage was a verbal one, and not binding within the statute of frauds. There are several very conclusive answers to this question, one of which is, that having secured and retained the possession, use and enjoyment of the property by virtue of the contract, he will not be heard to say now that it was not binding upon him. And another very good reason is, that this court has said in the case of Center v. McQuesten, 18 Kas. 476, that a promise made to a debtor, for a valuable consideration, to pay his debt to a third person, is not a promise to answer for the debt of another person within the statute of frauds, which applies only to promises made to creditors; and such a promise need not be in writing. Another good reason is, that it is a part of the purchaser’s money, and the vendor has a right to direct to whom it shall be paid. Another very good answer is, that he accepted a conveyance from McClellan and wife, in which there was a written assumption of this particular indebtedness, for it abundantly appears, after the conveyance was reformed so as to express the real contract between the parties,' that this plaintiff in error had expressly obligated himself in writing to pay this special indebtedness. The petition alleged that the plaintiff had agreed to pay the mortgage, and the defendant in error had the right to prove the agreement to pay in the manner developed at the trial; and in doing so it cannot be successfully contended that irrelevant and incompetent evidence was admitted.
Again, it is said that there was not sufficient evidence to support the findings of fact made by the trial court. This objection is made upon the theory, as we gather it from the brief, that parol evidence is not admissible to contradict a writing. Counsel mean that when the deed from McClellan and wife to Neiswanger was introduced in evidence, it was discovered, or rather it was charged, that it had been changed since its execution and delivery in this respect, to wit: When executed it read that the mortgage indebtedness on the lot was stated, and these words followed, “ which party of the second part assumes,” but when introduced in evidence it read, “ which party of the first part assumes.” The court found upon sufficient evidence that the word “second” had been changed since the execution and delivery of the deed to “first,” and this certainly was no violation of the rule.
Another complaint is, that the court allowed eight per cent, interest on the amount claimed, when the petition only claimed seven per cent. We have been through this record carefully several times and read the evidence attentively. The evidence and the concurrence of the circumstances surrounding the transaction very strongly impress us with the belief that substantial justice has been done between these parties by the judgment rendered in the court below, and the errors complained of are not sufficient to reverse under these circumstances. The judgment must be modified so as to bear interest at the rate of seven per cent., and with this modification we recommend that it 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
Porter, J.:
The plaintiff' was the owner of lot 23, and the Wellington Lodge of Odd Fellows was the owner of lot 24, in block 54 of the city of Wellington, and the two parties being desirous of erecting a two-story building upon these lots, in accordance with the plans and specifications adopted by them, entered into a written agreement which contained the following provision:
“Now, therefore, in consideration of the premises, it is hereby agreed and understood by and on behalf of each of the párties hereto that one-half of all of the expense of every kind and character which is to be and will be incurred in the erection and construction of said building is to be equally borne and paid by the respective parties hereto; that is to say, each of"said parties is to pay one half thereof according to a correct and itemized account of said expenditures, which is to be kept by the parties to this agreement.”
After the building was completed the plaintiff, claiming he had paid more than one-half the cost, brought this action to recover from the defendant the amount in excess thereof. The sole controversy arises over the construction of the quoted clause of the agreement.
The defendant by its answer set. up the three-year statute of limitations. The plaintiff demurred to the answer; the demurrer was overruled, and the plaintiff brings the case here for review.
The defendant’s contention is that because the written contract does not provide for either party advancing money on behalf of the other, the plaintiff’s claim is not based on the written contract, but merely on the proposition that he paid out money for the use and benefit of the lodge without a contract to do so, but under such circumstances that the law implies a contract that the lodge would reimburse him, and therefore it is said that the implied agreement is barred by the statute. It was upon this theory, as we understand it, that the court overruled the demurrer to the answer.
In our opinion, the cause of action is upon the written agreement. While it does not in so many words provide for reimbursement, in case one party should pay in the course of the ‘construction more than its share of the expense, it is unreasonable, we think, to construe the contract to mean that as payments became due for material or labor, they should be paid equally by the parties. It seems more reasonable to construe the intention of the parties to have been that one or the other should take principal charge of the construction of the building, pay the bills as they became due, and from time to time to call upon the other for contribution. Contracts of this character are to be construed in accordance with the ordinary course and usage of business men. We think the plaintiff might have paid all the bills for material and labor used in the construction, and when the building was completed might have maintained an action upon the contract against the other for its share.
To construe the writing as the defendant does would mean that each item or bill of expense was to be treated as a separate transaction and the cost thereof ascertained and divided between the parties when the payment was made. Otherwise, if one happened to pay more than one-half of any separate item, that one would have made a payment outside the provisions of the contract and could only recover such excess from the other on an implied contract for money paid to the use of the other. If either party was so distrustful of the other as to intend such an arrangement, there would have been an express provision, we think, to that effect. Such a plan would not have worked to the convenience or satisfaction either of the parties or of those with whom they dealt. It would have been very inconvenient and unsatisfactory for each material man or laborer who furnished a single item of material or a day’s labor if he had been obliged to collect one-half of his claim from each of these parties, and perhaps to have waited for a meeting of the lodge in order to collect the share due from it. Of course, neither party contemplated such a departure from the usual course in which business is transacted. Neither party contemplated any disagreement about the payments. While the contract is not clear as to the manner of making the payments, we do not think it is so ambiguous as to require extrin7 sic evidence to explain it. We think it is a fair and reasonable construction of the contract to hold that under it either party who had paid more than one-half the cost when the building was completed was entitled to recover from the other such excess. Other questions are discussed in the briefs, but they are not involved in the appeal.
The judgment will be reversed and the cause remanded for further proceedings in accordance herewith.
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The opinion of the court was delivered by
Porter, J.:
In the district court the plaintiff obtained a judgment against the defendant. In subsequent proceedings in aid of execution the court made a finding that in violation of an order prohibiting him from transferring any of his property the defendant had deposited in bank a sum of money in the name of his wife which was in fact his own; that he had on his person the sum of $5 in cash, and a gold watch, and in his possession a team of horses which belonged to him. The court thereupon ordered him to deliver the money within thirty days to the clerk of the court, and to turn over to the sheriff the other personal property, or enough of the same to pay the balance of the judgment and costs. The order was made on the* 6th day of January, 1913. On May 5, 1913, the plaintiff filed an affidavit setting forth the failure of the defendant to comply with the order and asking that an attachment issue for the defendant’s arrest. The order was issued and defendant was brought before the court, whereupon a written accusation was filed by plaintiff reciting the proceedings and previous order of the court and alleging that the defendant had refused to comply with the order. There was a hearing on the accusation, evidence taken, and the court adjudged the defendant guilty of an indirect contempt of court and committed him to the county jail until such time as he complied with the order or paid the judgment and costs. From this judgment the defendant appeals.
The first and second claims are, thát the court erred in making the order of .January 16, 1913, requiring defendant to pay over the money and deliver the property to the sheriff, and the refusal of the court to set this order aside. These might be disposed of summarily on the ground that nothing is involved in the appeal except the contempt proceedings. However, the objections raised to the proceedings are untenable. The order is not void for uncertainty. It was not necessary to recite the amount due on the judgment; that was a matter of record. Nor was it necessary for the order to state that the defendant was able to pay the j udgment. He was directed to turn over the property, or enough of it to satisfy the judgment. The order was sufficiently specific in describing the property which the defendant had in his possession and control. It is urged that the court had no power to make the order unless it should be first found that defendant was concealing the property. There is no statutory provision which requires such a finding. The statute authorizes the court to make an order of this kind when “the judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment.” (Civ. Code, § 524.)
The third and fourth claims of error may be considered together. They are based on the refusal of the court to strike the accusation from the files and the overruling of a motion to quash the accusation. The ground urged in support of both contentions is the same; that the accusation was not verified. There is no express provision of the statute that the accusation shall be verified. The only verification which the statute in terms requires is that of the preliminary affidavit for the issuance of the attachment authorizing the arrest. This provision was complied with. The statute requires “a written accusation setting forth succinctly and clearly the facts alleged to constitute such contempt,” and the accused is then required to answer. (Gen. Stat. 1909, § 2486.)
In The State v. Forner, 75 Kan. 836, 89 Pac. 674, and The State v. Fishbach, 79 Kan. 679, 100 Pac. 656, the prosecutions were for indirect contempt in violating orders of the court under the prohibitory law. It was held that the statute does not contemplate that the accusation should have all the formality of an information. The cases cited by the defendant, The State v. Henthorn, 46 Kan. 613, 26 Pac. 937, and In re Smith, Petitioner, 52 Kan. 13, 33 Pac. 957, are not in point for the reason that in neither of them was there an affidavit or accusation of any kind filed. In the present case the preliminary affidavit authorized the issuance of an order for the arrest of the defendant, and when he was brought before the court and the accusation was filed the court was authorized to hear and determine the accusation upon the testimony as produced. (Gen Stat. 1909, §2486.)
The fifth contention, that the whole proceeding must fail because the original order which the defendant was charged with having violated was not introduced in evidence, is without merit. The inquiry respecting the contempt was a part of the proceeding in aid of execution in which the order was made. In The State v. Thomas, 74 Kan. 360, 86 Pac. 499, which was a proceeding under the prohibitory law for the violation of an injunction order, and criminal in its nature, it was-, held that there was no necessity for introducing in evidence the order which was a part of the files of the case, and that the court will take judicial notice of the previous steps taken in the cause. We find no substantial ground for the claim that the proceedings were irregular or that the court exceeded its authority in making-.the orders complained of.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
In an action for damages the petition alleged that the defendant, in the operation of its railroad, set out a fire which burned over eighty acres of plaintiffs land, destroyed fences and consumed standing and growing crops thereon. The plaintiff’s land, through which the defendant’s right of way runs, and where the fire occurred, is situated in Woodson county, but the action was brought in Barber county, into which the defendant’s railway passes, and in which county the plaintiff resided at the time of the fire and when the action was commenced.
Service of summons was had upon a station agent in Barber county. The defendant made a special appearance with a motion to set aside the service and dismiss the action. At the hearing of the motion it was admitted that the defendant is a Kansas corporation having its principal office and place of business in Atchison county, and that none of its principal officers resided or could be summoned in Barber county. The court held that it had no jurisdiction and dismissed the action. From this judgment the plaintiff appeals.
The plaintiff relies upon the case of Henry v. Railway Co., 92 Kan. 1017, 142 Pac. 972, which was decided after the ruling complained of in the present case. It is the contention of the defendant that since it is a Kansas corporation, section 51 of the code is mandatory, and therefore the action must be brought “in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside or may be summoned.” It was held in the Henry case, supra, that the word “may” in this section is permissive and not mandatory, and that section 55 of the code, which reads, “Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned,” applies to all transitory actions and is merely declaratory of the common law.
The defendant concedes that on this point the Henry case is controlling, but insists that the decision there is wrong, and we are asked to overrule it. In the opinion (92 Kan. 1017), after quoting section 51 of the code, it was said:
“But the language of the statute is that actions may be brought in the counties there described, not that they must be. The three preceding sections referred to in the part of the statute quoted relate to strictly local actions, which ‘must’ be brought in specified counties.” (p. 1019.)
The court is satisfied with the ruling in the Henry case. In the opinion it did not overlook the language of section 49, which is one of the preceding sections, and which makes provisions for certain kinds of actions relating to real estate in which the plaintiff is given an option to bring suit in either one of two or more counties.
This brings us to the second contention of the defendant. The petition alleges that the fire set out by the defendant not only destroyed crops standing and growing on the land, and also the fences, but “by reason of the fact that the season was and had been extremely dry and the ground dried to a great depth, the fire destroyed the grass sod on said land, and destroyed the value of the land for pasturage or meadow for several years to come; . . . that such fire over and above the destruction of the growing hay crop and the fences, permanently injured the land and sod to the extent of $10 per acre, or $800, and that after the said fire the said eighty acres of land and the improvements thereon, which consisted of the fencing only, was worth $1455 less than it was immediately before the fire.”
The defendant insists that the action being one to recover for permanent injuries to real estate, it falls within the provisions of section 48 of the code which declares that actions concerning real property must be brought in the county in which the subject of the action is situated. These are actions “for the recovery of real property, or of any estate or interest therein, or for the determination in any form of any such right or interest.” Our statute, however, differs from the New York code of 1849 and similar codes, which expressly include, in actions concerning real property, those “for injuries to real property.” We have, therefore, no express provision as to the venue of actions for injuries to land.
Speaking of the difference, between the two classes of statutory provisions, the author of the article on “Venue,” in 40 Cyc. 78, uses this language:
“The net result is that the common-law rule, as to the venue of an action to recover damages for injuries to land, has been abrogated, wholly or in part, in a considerable number of jurisdictions. And, apparently, the change may come without an express abrogation of the older rule. Under the prevailing statutory tendency to make the residence of a party the test of venue, the absence of an express enactment on the venue of actions for injuries to land will, apparently, leave them clear of the common-law restrictions, at least in states where the doctrine of venue is now upon a statutory basis.”
In Duncan v. Yordy, 27 Kan. 348, it was held that an action to recover damages for unlawfully entering real estate and destroying growing crops thereon may be brought in the county in which the defendant resides or may be summoned. While in Brown v. Irwin, 47 Kan. 50, 27 Pac. 184, it was held that an action at trespass quare clausum fregit as to land in another state is local. Since there is no provision in the code fixing the venue in an action to recover “for injuries to real property,” and that expression was omitted from section 48 of the code, we think the action here must be regarded as transitory. It is not in any sense for the recovery of real property, or of any estate or interest therein, nor is it brought for the determination in any form of any right or interest in real estate. We think this conclusion is in accordance with the prevailing tendency of the decisions to construe similar statutory provisions as applying only to actions which determine or affect the interest in land directly. (See 40 Cyc. 58.)
The judgment will be reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Porter, J.:
The appellant brought this action in the district court of Sumner county against certain nonresidents of the state, and joined as defendant W. M. Winsor, the appellee, who is a resident of Marion county. Jurisdiction over the property in Sumner county belonging to the nonresident defendants was obtained by attachment, and they afterwards entered their appearance in the action. The appellee was served by a summons issued to the sheriff of Marion county. The action was to recover a commission for procuring a purchaser of real estate pursuant to a written agreement executed by Winsor, the appellee.
As against the Illinois defendants the petition alleged that in nfaking the contract for the sale of the real estate and in the employment of the appellant to procure a purchaser, Winsor acted for himself, and also as agent and representative of the other defendants, and that they were jointly liable with him for the commission which the appellant claimed he had earned in procuring a purchaser.
The nonresidents answered by a verified denial of the agency of W. M. Winsor, or his authority to act for them. Winsor challenged the jurisdiction of the court by motion to quash the summons. The challenge was sustained, and on appeal the judgment was reversed and the cause remanded for further proceedings. (Hembrow v. Winsor, 87 Kan. 714, 125 Pac. 22.) It was there held that on the face of the pleadings W. M. Winsor was rightfully joined as a defendant. Winsor filed another answer challenging the jurisdiction of the court and alleging that the pretended cause of action against the nonresident defendants was not brought in good faith, but for the purpose of obtaining jurisdiction over him in Sumner county. He admitted the execution of the contract as his personal obligation and denied all other allegations of the petition. The relief asked for was that the action be dismissed as to him for want of jurisdiction.
On the trial at the close of plaintiff’s evidence a demurrer was sustained on the part of the nonresident defendants, and the action was left pending solely against Winsor, a resident of Marion county. He thereupon filed a motion to have the cause dismissed for the reason that, the action having failed as to the nonresident defendants, the court had no jurisdiction over him. The court sustained the motion and rendered judgment against the appellant for costs.
It is clear that the ruling of the court dismissing as to the appellee must be sustained. ■ The appellant cites and relies upon the case of Edwards v. Gildemeister, 61 Kan. 141, 59 Pac. 259, where it was held that:
“A contract executed by an authorized agent in his own name, but in fact in behalf of his principal, is the contract of the principal, and suit may be brought against him to enforce-its provisions.” (Syl. ¶ 2.)
. The doctrine of that case has no application here because the appellant failed to produce any evidence showing that the contract sued upon was in fact made in behalf of the Illinois defendants as principals. No evidence was offered which tended to show that Winsor was authorized by the nonresident defendants to employ any real-estate agent to assist him in procuring a purchaser for the land, or that they were to become liable for the payment of a commission to.any person. The land is situated in Sumner county. It belonged to Winsor and the Illinois defendants as cotenants. They entered into an agreement with Winsor that he might sell the land at a net price of $12,000 and that they would convey their interest to him so that he could convey title to the purchaser. He employed the appellant by the written contract sued upon to assist him in a sale of the land. The appellant claimed' that he procured a purchaser able and willing to take the land at the price agreed upon in the contract between himself and Winsor, but that Winsor refused to complete the sale. Many of the authorities which appellant relies upon are cases in which a contract was entered into by the agent of an undisclosed principal. The appellant claimed that Winsor in making the contract acted for himself personally and as agent and representative of the other defendants, and that at the time the contract was entered into he exhibited to the appellant certain letters written by the other defendants authorizing him to sell or have the land sold upon certain terms. It thus appears that if there was an agency it was not undisclosed, but that plaintiff accepted the written agreement of the agent knowing that he represented the other defendants. The contract sued upon does not pretend to bind any one except Winsor, and if it were conceded that appellant’s proof sustained his claim, it falls within the rule that one who takes an agent’s obligation for work performed, with knowledge of the principal’s liability therefor, must look to the agent alone. (Paige v. Stone and another, 51 Mass. 160, 43 Am. Dec. 420; Merrell v. Witherby, 120 Ala. 418, 26 South. 974, 74 Am. St. Rep. 39.)
(See, also, 31 Cyc. 1570, and cases cited.)
The case of Renwick v. Bancroft, 56 Iowa, 527, 9 N. W. 367, is not in point. • It was there held that an agent having authority to sell land, exercising his discretion as to price, may employ a real-estate agent to find a purchaser and a sale by him will be enforced. It was not an action to recover for the commission paid to the subagent, but was an action for specific performance of the contract of sale made through the sub-agent. The couit d’d not hold that' the agent may bind his principal fo,r compensation of a subagent.
It is true, there was evidence that one or more of the nonresident defendants had written Winsor to sell, and the evidence tended to show that the other Illinois defendants consented to his selling the land; but there was no evidence that any of them authorized him Lo employ a subagent. The fact that they conveyed then’ interests to him in order that he might convey the title to a purchaser can not be held as a ratification of his employment of a subagent so as to bind them to pay the compensation of the .subagent.
In the former decision (Hembrow v. Winsor, 87 Kan. 714, 125 Pac. 22), nothing was decided further than that the acceptance of service by the nonresident defendants made the case rightly brought in Sumner county so far as appeared from the pleadings. On the trial it was disclosed that the action was not rightly brought in Sumner county, because of the failure of the evidence to sustain a cause of action against the nonresident defendants, and it left a case standing alone against the appellee, who is a resident of Marion county.’ It follows that the court in Sumner county had no jurisdiction over his person, 'and the motion to dismiss was rightly sustained. (Brenner v. Egly, 23 Kan. 123; Rullman v. Hulse, 32 Kan. 598, 5 Pac. 176, and 33 Kan. 670, 7 Pac. 210; Linney v. Thompson, 44 Kan. 765, 25 Pac. 208; Wells v. Patton, 50 Kan. 732, 33 Pac. 15.)
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, Alice Hartman, recovered a judgment in the district court of Harper county, Kansas, against the railway company, for $800 damages for personal injuries caused by being knocked down and run over by a cow which had escaped from a car broken open in a collision. The defendant appeals.
Through the negligence of the defendant, a collision between two freight trains occurred on its road running east and west through the city of Harper. The eastbound train was a special, with sixty-three cars, loaded with cattle. As a result of the collision several of these cattle cars were torn open and a number of cattle escaped therefrom into the city of Harper. The defendant employed several residents of Harper to gather up the escaped cattle and put them in the stockyards. One of these men was O’Connell. While these employees were gathering .up the cattle, one of them, a cow, charged the plaintiff, knocking her down and injuring her. For this injury she brought this action.
A better understanding of how this cow acted, and of what those driving her did, can be had by quoting somewhat from appellant’s abstract.
Mr. O’Connell testified:
. . . Mr. Elder, the station agent, employed me to get some of the cattle in. It was about half-past one. ... I joined in there to help get the cattle back. To get the cattle back we were out there until about 6:30, as near as I could judge. As we got the cattle in we put them in the stockyards. Put seven head in there. The rest got away in different directions while we were taking this bunch out there. One of the cows laid down and kind of sulked and we went on with the balance and put them in the yards. Then I came back to see where the cow was. In the meantime she got up and started down the street. I followed her right up horseback, and she was going down the street, and I was not looking for anything to occur much. I was right after her horseback when this old lady was coming up the sidewalk. I was two or three rods behind the cow, riding along, and just as the cow got even with this old lady she whirled and made a run right towards her, and run over her, and knocked her down. The cow had shown a little bad disposition before that. She made two or three dives at the horse and me like any cow will when they get riled up and go to driving them — get warmed up. Most any cow will. The cow was supposed to be western bred. I could not say where she came from. . . . When I first came down to the stockyards she charged at me, and I got out of the way. . . . There were sidewalks along the street. I was thirty or forty feet behind at the time she made this rush for the old lady. I saw Mrs. Hartman coming along. ... I was on horseback. The cow was walking. I was not expecting her to run. I do not know if the fact that she had made some passes at me and my horse had anything to do with my staying so far behind. I was not particularly afraid of her at that time. I did not want to crowd her on. I was waiting for help. I felt at this time that I should have had more help with the cow. At the time I first s$w Mrs. Hartman she was walking on the sidewalk. . . . When the cow came up near to Mrs. Hartman she turned and ran at her, tore down the street and ran for her and struck her. Threw Mrs. Hartman down and run over her. The cow went on through the fence, over the fence, turned a somersault right over the fence. Had some speed up. She had been walking quietly along just prior to that time. I was as close as twenty feet to her anyhow. After she turned before she struck Mrs. Hartman she had to travel 25 or 30 feet, or about half way across the street. There was a fence right against the sidewalk. The cow struck Mrs. Hartman and ran over her and turned a complete somersault over the fence. It was done so quickly I could not tell. I knew she went over it, turned right over. I thought she was going to get up and make for the old lady, and I run right across and told her to make for the house. Then I drove my horse right across the sidewalk and the cow got over the fence and turned and went down the street. I judge it was about five o’clock. I did not assist Mrs. Hartman at all. Went after the cow. The cow went down the street, and there were some children on the street. I went on down to get them out of the road. Hollered to the children to get out of the road, and saw Mrs. Hartman get up and go into the house . . . and I was trying to follow this cow up and do all I could. The cow went down on a vacant lot and laid down. I did not get the cow back up to the stockyards. I was running a livery barn, and about 6:30 I had to go back to the barn. The other boys came along with a rope, and had better saddle horses than I had to take hold of her. . . . Before she ran over the plaintiff I had been driving her with the other cattle. When she dropped from the bunch she laid down beside the road. She was pretty scrappy before that, fought the horse and fought us. A .man named Jack Munger and I were driving. After she quieted down she acted like any other cow would under the circumstances. We run them a good deal and got them warmed up, and they got mad. . . . This cow showed fight before she laid down. That was before she struck Mrs. Hartman.”
Sam Row testified:
“The cattle liberated were western cattle, long-horn cattle. I would call them wild and scrappy cattle. They were wild and savage.”
The jury returned a general verdict in favor of the plaintiff. Several special questions were submitted to the jury and answer's returned, the material ones of which are as follows:
“1. Q. What, if any negligence, was the defendant guilty of that caused the injury to the plaintiff, if any injury the plaintiff received? A. Neglect to perform their duty in failing to turn switch which caused wreck and liberated cattle.
“6. Q. If the defendant’s negligence caused the injuries complained of, give the name or position of the employee or employees guilty of such negligence. A. Conductor.
“8. Q. Had the animal that ran over the plaintiff been passing quietly down the highway in front of O’Connell for several blocks, just prior to the time plaintiff was run over by said animal? A. No.
“9. Q. Was said animal passing down the highway quietly and in an ordinary walk, just prior to the time it ran over the plaintiff? A. Yes.
“10. Q. After the animal in question ran over the plaintiff, was it driven for some distance by O’Connell in an ordinary walk to a lot where it lay down? A. Yes.
“11. Q. Were the cattle that escaped what is known as white-faced cattle, (at least in the main) ? A. Yes.
“12. Q. If the cow that ran over the plaintiff was wild and dangerous, when did any representative of the defendant learn that fact? A. When said cow charged O’Connell.
“18. Q. Who, if any one, learned said cow was dangerous? A. O’Connell and Sam Noel.
“14. Q. Did the animal that ran over the plaintiff belong to the species known as white-faced cattle? A. No.
“17. Q. What was the direct and immediate cause of the cow running over the plaintiff ? A. Because of a vicious disposition.
“18. Q. How long was it from the time the cattle escaped until the plaintiff was run over by the cow in question? A. About four (4) hours.
“19. Q Are what is known as white-faced cattle-wild, unruly or dangerous as a class ? A. Yes.
“20. Q. Were these cattle what is known generally as the wild, dangerous Texas cattle? A. Yes.”
A demurrer to the evidence was overruled, and a motion for judgment in favor of the defendant on the special findings was denied.
The defendant contends that the negligence of its employees in causing the wreck was not the proximate cause of the inj ury to the plaintiff; that there was an intervening cause of the injury; that this intervening cause was the act of the cow in charging the plaintiff; that the defendant had no knowledge of the cow’s vicious disposition for a sufficient length of time in advance of the cow’s attack upon plaintiff to have prevented the same by the exercise of ordinary care; that its employees did their best to drive the cow to the stockyards; that there was no contractual relation between plaintiff and defendant, and for that reason the defendant could not be guilty of negligence toward the plaintiff; and that for these reasons it is not liable to the plaintiff for the injuries sustained.
Was the negligence in causing the wreck the proximate cause of the injury to the plaintiff, as that expression is used in actions for damages for personal injury? The following cases may assist in answering this question.
“Negligence is the proximate cause of an injury when it appears that ‘the inj ury was .the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.’ ” (Schwarzschild v. Weeks, 72 Kan. 190, syl. ¶ 3, 83 Pac. 406.)
“Negligence, to be the proximhte cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom, not that the specific injury would result.” (Railway Co. v. Parry, 67 Kan. 515, syl. ¶ 2, 73 Pac. 105.)
“The proximate cause of an injury is the primary ■ moving cause, without which it would not have been inflicted, and which, in the natural and probable sequence of events, without the intervention of any new and independent cause, produces the injury.” (City of Winona v. Botzet, 94 C. C. A. 563, syl. ¶ 4, 169 Fed. 321, 23 L. R. A., n. s., 204.)
The negligence of the defendant’s employees caused the wreck of cars loaded with cattle. From these cars some of the cattle escaped. Some of the escaped cattle did injury. This was the natural, probable and to be expected result of the negligence, and ought to have been foreseen by a person of ordinary caution and prudence, in the light of the attending- circumstances. The specific injury could not be foreseen, but that these cattle would do some damage, in their fright or their anger, was very likely. That injury might reasonably have been expected to be to gardens, crops, animals or ' to persons. The negligence causing the wreck was the primary or first moving cause without which the injury would not have been inflicted.
Was there another, an intervening cause, between the defendant’s negligence and the injury to the plaintiff?
“Where two distinct,. successive causes, wholly unrelated in operation, contribute toward the production of an accident resulting in injury and damage, one of such causes must be the proximate, and the other the remote, cause of the injury.
“A prior and remote cause cannot be made the basis of an action for the recovery of damages if such remote cause did nothing more than furnish the condition, or give rise to the occasion, by which the injury was made possible, if there intervened, between such prior or remote cause and the injury, a distinct, successive, unrelated and efficient cause of the injury.” (Railway Co. v. Columbia, 65 Kan. 390, syl. ¶¶ 1, 2, 69 Pac. 338.)
“The intervening cause, which will relieve of liability for an injury, is an independent cause which intervenes between the original wrongful act or omission and the injury, turns aside the natural sequence of events, and produces a result which would not otherwise have followed, and which could not have been reasonably anticipated.” (City of Winona v. Botzet, 94 C. C. A. 563, syl. ¶ 4, 169 Fed. 321, 23 L. R. A., n. s., 204.)
“The mere fact that another cause intervened between defendants’ negligence and plaintiff’s injury is not enough to relieve the former from liability if the intervening act was of such nature that its happening was to have been apprehended. Stated otherwise, the intervening cause will not relieve the original negligence of its actionable quality if the occurrence of the former might have been anticipated.” (Fishburn v. Railway Co., 127 Iowa, 483, 490, 103 N. W. 481.)
“If a carrier be guilty of negligence not in itself harmful, but wrongful only because of injurious consequences which may follow, and a new cause intervene between such negligence and the injury complained of, which new cause is not a consequence of the original negligence, which reasonable prudence on the part of the original wrongdoer could not have anticipated, and but for- which the injury could not have happened, the new cause is the proximate cause and the original negligence is disregarded as not affecting the final result.” (Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885.)
“The question of proximate cause is one frequently so near the border line as to’cause much perplexity, but, generally speaking, it may be said in this state that the proximate is the producing cause; not the one supplying the condition, but the one producing the injury. The one supplying the condition may be so intrinsically careless as to amount practically to a continuing invitation, so to speak, for a direct cause to join in producing a disastrous result. But to be such it must present a condition of danger so manifest that the one responsible must be held to have been negligent in furnishing the means for a probable injury. But a condition which could not. reasonably be expected to endanger, and which but for some independent cause without which the injury would not have occurred would not have endangered, does not ordinarily amount to a proximate cause.” (Eberhardt v. Telephone Co., 91 Kan. 763, 765, 139 Pac. 416.)
“Where the intervening cause is set'in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. ... If the act of the third person which is the immediate cause of the injury is such . as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the first act or omission, the connection is broken and the first act or omission ip not the proximate cause of the injury.” (Seith v. Commonwealth Elec. Co., 241 Ill. 252, 260, 98 N. E. 425.)
“The primary cause may be' the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement. . . . The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?” (Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 474, 475, 24 L. Ed. 259.)
The injury to the plaintiff was related to the negligence of the defendant. That injury did follow, in regular order, the several successive events flowing from that negligence. There was an unbroken cqnnection between that negligence and the injury to the plaintiff, unless the attack by the cow, or the acts of her drivers, broke that connection or succession of events. It can hardly be said that these acts — of cow or drivers —were causes independent of the original acts of negligence. The driving of the cow by the defendant’s employees was made necessary by the wreck. It was the duty of the defendant to gather up the liberated cattle. The producing cause, the one without which the injury would not have occurred, was the negligence of the defendant. That negligence made it necessary to employ the drivers. They were not acting independent of the defendant. Their employment was to have been anticipated. They were under the control of the defendant. The cow had no intelligence. She could not produce a cause of inj ury for which some person might be liable. The acts of the cow can not be said to have been a cause of the injury to the plaintiff, intervening between the negligence of the defendant and that injury, so as to relieve he company from liability for its negligence. The drivers may have been negligent in handling the cow, but that is not alleged and can not be considered. If they were negligent, and had been separate and independent agencies, the defendant probably would not be liable. '
If McConnell had been the owner of the cow, would he be liable for the injury done? He learned that the cow was vicious when she charged him on three separate occasions, before injuring the plaintiff. McConnell then had notice of the cow’s vicious disposition. It was then his duty to see that she did no injury to any one. He was then bound to use a degree of diligence that would prevent injury. It finally became necessary to rope this cow. That is probably what ought to have been done before she injured the plaintiff. The cow was in the streets of a city. She was almost sure to hurt some person, unless her freedom of movement was absolutely restrained. A jury would have been warranted in finding McConnell guilty of negligence in handling the cow, and therefore liable for the damage done by reason of that negligence. The owner of a domestic animal, known by him to be vicious, must see that it does no injury. (3 Ene. L. & P. 966; 1 R. C. L. 1088, 1089; 2 Cyc. 368, 369.)
In Clowdis v. Fresno Flume etc. Co., 118 Cal. 315, 50 Pac. 373, 62 Am. St. Rep. 238, the owner of a bull was held liable for injuries inflicted while the bull was being driven from, one place to another, a vicious disposition being first developed on the trip, the injury-being done after the bull had attacked several persons.
The jury found that the cattle were what is known as wild, dangerous, Texas' cattle. By the negligence causing the wreck they were released in a city. It is only reasonable to expect this kind of cattle turned loose in a city to do damage, not only to property, but to persons as well. The fact that one of them did hurt an old lady, without any additional cause therefor, shows that injury ought to have been expected as a result of these cattle roaming on the streets of Harper.
. It is generally known that wild, dangerous, Texas cattle will attack men on. foot. When these cattle were released, it ought to have been anticipated that they would attack pedestrians whom they might meet.
In Hammond v. Melton, 42 Ill. App. 186, we find this:
“The owner of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and if such propensities are of a nature to cause injury he must anticipate and guard against them.” (p. 189.)
“What is the proximate cause of an injury is ordinarily a question for the jury.” (Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 474, 24 L. Ed. 259.)
(See, also, Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105; Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488.)
“When the facts are established, whether the negligent acts complained of are the proximate cause of the injury is a question of law to be determined by the court.” (Light Co. v. Koepp, 64 Kan. 735, 736, 68 Pac. 608.)
(See, also, Dewald v. K. C., Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101; Eberhardt v. Telephone Co., 91 Kan. 763, 767, 139 Pac. 416.)
“In a case where it is either admitted, or from the facts as found established, that two distinct, successive causes, unrelated in their operation, conjoined to pro.duce a given injury, the question of remote and proximate cause becomes one of law for the decision of the court, and not of fact for the determination of the jury, and the determination of this question of law by the jury is not binding or conclusive on the court.” (Railway Co. v. Columbia, 65 Kan. 390, syl. ¶ 3, 69 Pac. 338.)
It must be noted that in all the cases quoted from the question of proximate and intervening causes depends on their relation to or independence of each other.
Whether or not the question of proximate cause should have been submitted to the jury is unimportant, if we have reached a correct conclusion concerning the. liability of the defendant on the facts as shown by its abstract. The question was submitted to the jury, and the jury, in their general verdict, found against the defendant, and the court approved the verdict. We are not unmindful of the answer to question seventeen. That answer is, that the direct and immediate cause of the cow’s running over the plaintiff was her vicious disposition. But that vicious disposition was not the proximate cause of the injury to the plaintiff. That was an unintelligent dangerous force that had been loosed by the defendant’s negligence.
The defendant cites 29 Cyc. 419, 426, to the effect that it owed no duty to the plaintiff. There was no contractual relation between the parties, but the defendant did owe to the plaintiff the duty of not injuring her by any agency it might set in motion.
We have given this case careful consideration, and are unable to say that the judgment should be interfered with, and it is therefore affirmed.
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The opinion of the court was delivered by
•Dawson,' J.:
This was. an action to recover an agent’s commission on the sale of one hundred sixty acres • of land in Ottawa county, Kansas. About November 1, 1911, Rolla C. Emery, the appellee, called on E. E. Grimes, a real-estate agent in Minneapolis, the county seat of that county, and listed his farm of two hundred and twenty acres for sale at $75 per acre, upon a commission of five per cent on the first $1000 and two and one-half per cent on the balance. ■ Several times during the winter of 1911-’12. Grimes called upon one John Kline, who lived two and a half miles north of Ada in the same county, seeking to interest Kline in the Emery farm. Sometime during the winter Emery sold sixty acres of his farm to another purchaser; and on February 13, 1915, Grimes and Emery met in Minneapolis and had a conversation, as testified by Grimes:
“I said to Mr. Emery T notice you have sold a part of your land’ and he said ‘yes’ and now I says, T believe I can bring a man from north of Ada that can handle that- land at this' time, I think you have got it down to where he can handle it,’ and I said ‘Would you do any better than $75.00 an acre on this land?’ and he said ‘if you could sell this land right away, he would do some better than that’ and I told Mr. Emery that I would go right out and see the party within a day or two, as soon as I could get away, I told him if he thought we could make satisfactory terms, and he said he thought he could.”
Grimes also testified that Kline promised to “go and look at the land when he could get away.”
Grimes’ testimony continues:
“A. On the 15th of February I went to see Mr. Kline and I saw him and told him that Mr. Emery had sold 60 acres of this land leaving 160, and that Mr. Emery told me that if he could -sell it right away, he would do a little bit better than $75.00 an acre, and I told Mr. Kline that I couldn't give him the definite price that the price that was given to me was $75.00 per acre, but I told him what Mr. Emery had said.
“Q. What did you tell him? A. I told him that Mr. Emery had said that'he would do a little bit better if he sold it soon, and I told him that Mr. Emery had said that the terms would be made so that he could handle it.”
On April 12,1912, Kline went to see the Emery farm and bought it for $11,200. Before closing the deal, Emery ashed Kline if any real-estate dealer had told him about the land and Kline answered in the negative.
Grimes sued Emery and recovered his commission on the sale of the farm. Emery appeals and complains (1) of error in overruling the demurrer to plaintiff’s evidence, and (2) error in the court’s, instructions.
Was., there sufficient evidence that the sale was brought about in whole or in part by the agency of Grimes? Grimes testified that it- is not a custom among real-estate dealers to let their principals know what possible purchasers they have in view. Doubtless that is a precaution of the real-estate dealer’s art begotten by the precarious ties which hold the principal and agent in real-estate transactions. We do not intimate that the law will countenance such a limitation of an agent’s duty in real-estate sales. (31 Cyc. 1450.) Here this questionable custom makes the difficulty in fixing liability upon Emery for his commission.
Conceding that both Grimes and Emery were acting in the best of faith, one of them must lose; and it is but just that the one who failed to guard his interest should be the loser rather than the one in whom is no fault. If Grimes had told Emery about Kline as the prospective purchaser whom he was trying to interest in the farm Emery would have been liable for the commission when the sale was effected. If Emery had called up Grimes by telephone this controversy might have been avoided. But under all the circumstances, the question whether Grimes was the procuring cause ■of the sale of the farm was properly a jury question .and it was not error to overrule the demurrer to the ■evidence.
The court instructed the jury as follows:
“3. If you find and believe from the evidence, by a preponderance thereof, that at the time mentioned in plaintiff’s petition, the defendant, Rolla C. Emery was the owner of the real estate described in plaintiff’s ■petition, that he listed the same with the plaintiff for sale, that said Emery sold the said property to one John Kline, and that this plaintiff was the procuring ■cause of said sale, then it will be your duty to find your verdict for the plaintiff.
“4. The jury are instructed that one is the procuring cause of a sale of real estate when, through his efforts, the seller and buyer are brought together and a sale of the real estate is effected.
“5. The jury are instructed that where a real-estate agent, under contract with the owner, calls attention of a prospective buyer to land.and through the efforts of such agent a sale is consummated, such agent is entitled to his commission, though the purchaser when solicited by the agent to buy was not ready, willing and able to purchase.
“6. Where a real-estate agent, with whom land is listed for sale calls the attention of a purchaser to the land, giving him a description of the same and the name and residence of the owner, and the owner after-wards sells the real estate to the purchaser at a less price than the agent was authorized to sell for, the agent can recover his commission on the amount received for the real estate by the owner, but such agent must be the procuring cause of the sale of such real ■estate.”
Counsel for appellant severely criticises the fifth instruction. Standing alone it is somewhat unsatisfactory but when read in connection with the instructions which precede it it can not be said to be erroneous. An examination of the leading Kansas cases for the last forty years will show how liberally the law of this state deals with real-estate agents.
In Gillett v. Corum, 7 Kan. 156, it was held that:
“An agent employed to sell real estate, and finding a purchaser, and bringing him and his principal into communication, and setting on foot negotiations which result in a sale, can not be deprived of his right to compensation by a discharge prior to the consummation of the sale.” (Syl. ¶ 2.)
In Ratts v. Shepherd, 37 Kan. 20, 14 Pac. 496, it was held that:
“Where a real-estate agent advertises land, calls the attention of a purchaser to it, directs him to the home of the owner, with a description of the premises, and the owner completes the sale at a less price than the agent was authorized to sell for, the agent can recover his commission on the amount received by the owner.” (Syl.)
In Dreisback v. Rollins, 39 Kan. 268, 18 Pac. 187, it was held:
“A broker employed to sell lands, or to find a pur- ' chaser for them, who brings and introduces a buyer to the owner, and starts negotiations between them, which result in a sale, is entitled to his commission, although he is not present during the negotiations and until the completion of the sale.” (Syl. ¶ 1.)
In Plant v. Thompson, 42 Kan. 664, 22 Pac. 726, it was held:
“It is sufficient to entitle real-estate agents to their commission if a sale is effected through their agency as its procuring cause, although the sale may be made by the owners of the property, if by their exertions the purchaser and owner are brought together, and the sale results therefrom.” (Syl. ¶ 1.)
In that case it was also held:
“The owners of land can not evade all liability of paying their agents’ commissions for the sale of land for the reason they sold for a sum less than the price given their agents to sell, where the reduction is made of their own accord and to escape payment of the com missions, when the agents were the means of bringing the owners and purchasers together, and the sale resulted therefrom.” (Syl. ¶ 2.)
In Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104, it was said:
“It is sufficient to entitle a real-estate agent to recover his commission for the sale of land that he, under a contract with the owner thereof, has been the procuring cause of such sale. He neednot have conducted it to a final and successful conclusion.” (Syl. ¶ 1.)
Compare the next paragraph with the instruction complained of:
“If a real-estate agent, under a contract with the owner, call the attention of a prospective buyer to the land of such owner, and thereafter, moved by the efforts of such agent, the proposing buyer and the owner consummate the purchase and sale of such real estate, the agent is entitled to his commission, even though the purchaser, at the time the agent solicited him to buy, was not ready, willing and able to purchase.” (Syl. ¶ 2.)
In Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444, it was said:
“A broker employed to sell land is entitled to his commission when he is the procuring cause of a sale and has produced a buyer who is ready, willing and able to pay the agreed price and to consummate the sale.” (Syl. ¶1.)
A late case which clearly states the law and collates the authorities is Beougher v. Clark, 81 Kan. 250, 106 Pac. 89. Kluber v. Shannon, 83 Kan. 790, 112 Pac. 625, was a case which went off on a conflict of testimony as to whether the sale was procured by the agent or by the independent efforts of the owner. Weigand v. Knight, 89 Kan. 807, 132 Pac. 1006, was a controversy as to whether a sale of real estate was effected by negotiations put on foot by the agent or whether the owner had made the sale himself unaided by such negotiations. (See, also, Lyman v. Wagner, 90 Kan. 12, 132 Pac. 988; Hutton v. Stewart, 90 Kan. 602, 135 Pac. 681; McClintock v. Pyle, 91 Kan. 393, 137 Pac. 788.)
The sixth instruction is also criticised, but in the light of the foregoing citations and when considered with its context it is not erroneous, Appellant had the right, if he thought the instructions did not fully cover the issues, to ask for an instruction giving his precise view of the law as applied to the facts developed by the evidence. (Dewey v. Bobbitt, 84 Kan. 663, 114 Pac. 865.)
The judgment is reaffirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is a consolidation of two actions, numbers 19,855 and 19,356. The first is an appeal from the order of the board of county commissioners granting and allowing a change of location of a public road. The second, number 19,356, is an injunction action to prevent the opening of the same road. The two actions were tried together in the district court, and are consolidated here. Judgment was rendered in favor of the board of county commissioners in each case.
There are two principal contentions made by the plaintiifs. The first is that the board of county commissioners was without jurisdiction to establish the road, because of defective proceedings. The second is that W. W. Guthrie was not the agent of the parties interested in the property affected, so as to bind them by any notice that might be given him, or by any steps that he might take, or any appearance that he might make.
The petition for the change of this road was filed October 12,1912, and was in proper form, signed by the required number of householders, and sworn to by the principal petitioner. A bond such as is required by law was signed on the same day, and approved by the board of county commissioners on the 7th day of November, 1912. No appointment of viewers appears of - record, but there is among the files an affidavit dated December 28,1912, with three signatures, stating that the affiants were appointed viewers on November 7, 1912. There appears in the files a “report of surveyor” and a “report of view of road,” the report of the viewers being dated December 28, 1912. No question is made as to the sufficiency of the last two documents. A road notice was published by the county clerk in substantial compliance with the law, except that the time fixed for viewing the road was thirty-two days after the second publication of the notice. This notice fixed the time to view the road as December 28, 1912. This notice was published for six consecutive weeks, the first publication being on November 19, and the last on December 24, 1912. A copy of this publication notice was posted in the office of the county clerk from November 19, 1912, to January 6,1913; and another copy of the notice was publicly posted at Haxamy Garden, in Shannon township, twenty days prior to the date of viewing the road. It seems that no record of such notice had been entered on the journal by the county clerk at the time-these actions were commenced. Written notice was served on W. W- Guthrie, agent. Affidavit of service of this notice was made on the 14th day of December, 1912. There is among the files a “separate report as to assessment of damages,” dated December 28-, 1912, signed by the viewers, addressed to the board, and reciting that they “assess damages as follows: In favor of W. F. Guthrie, executor estate of W. W. Guthrie, deceased, owner, $172.50.” It appears that a loose sheet was among the files, showing that the road was granted as petitioned for. No notice was served on any of the parties complaining.
The county clerk’s journal of commissioners’ meeting shows that the county engineer was instructed to stake and lay out the road. The notice to W. W. Guthrie, agent, found among the files, appears to be to W. W. Guthrie, agent for Julia F. Guthrie, owner and in possession, etc. To this is attached a copy of the published road notice, and the following claim for damages:
“To the viewers of road as petitioned for by G. E. Hanna and others: Referring to the above notification, I hereby make claim and application for damages and compensation in the sum of $150 per acre for land that may be taken Dollars, ($172.50) in the event that said proposed road is located and established on the line between Sec. 2 & 3; 10 & 11, Twp. 6, Range 20, said proposed location causing an appropriation of One & 15/m acres of said land at $150 per acre equal One Hun- - dred Seventy Two & 5%oo Dollars. ($172.50)
W. F. Guthrie, Executor
Estate W. W. Guthrie, deceased, owner.”
Most of the documents mentioned appear without filing marks. It is not necessary that a document filed have indorsed thereon a statement showing that it was filed. Delivery to the proper officer and his receiving the same, to be kept on file, is all that is necessary. (Wilkinson v. Elliott, 43 Kan. 590, 595, 23 Pac. 614; Rathburn v. Hamilton, 53 Kan. 470, 474, 37 Pac. 20: The State v. Heth, 60 Kan. 560, 562, 57 Pac. 20.)
What are the necessary steps, without the taking of which a public highway can not be laid out ? The first of these is the filing of a proper petition. The next is the publication and posting of the road notice. A third is giving the notice to the property owners, if residents of the county. Another may be said to be appointment of viewers and viewing and laying out the road. The last is the ordering of and establishing the road, by the board of county commissioners. Probably each of these steps is absolutely necessary. All of them were taken in this case.
1. The petition was in the form and signed by the persons required by law. Bond was given and approved. Viewers were appointed, and notice of the time and place of their meeting was published, the first publication of which was on the 19th day of November, and the last on the 24th day of December, 1912. Notice was posted in the office of the county clerk, and in a public place in Shannon township. Notice was also served on W. W. Guthrie, agent, but was not served on those complaining in this proceeding. The viewers met on the day named in the notice, December 28,1912, viewed the road, recommended that it be laid out, assessed damages to the property owners, and filed their report with the county clerk. The county commissioners ordered the road established. W. W. Guthrie, purporting to represent those who complain in these actions, presented to the viewers a claim for damages in the sum of $172.50, which was allowed. The record of the proceedings of the board of county commissioners is defee- tive, but the abstracts in this case disclose the fact that the commissioners had before them, and did, those things that were necessary for them to have and do, to give them jurisdiction and authority to lay out this road. When Mary G. White and W. F. Guthrie commenced their action against the board of county commissioners to enjoin them from laying out and opening the road, a temporary injunction was granted, enjoining them and the county clerk from making any further or more complete record concerning the road. It has not been shown that anything that should have been done was not done, unless notice should have been personally served on G. L. Guthrie.
2. What is the purpose of the notice provided for in section 7277 of the General Statutes of 1909? The object is to give the owner of the land notice that proceedings to take a part of his land for a public highway are in progress. If he does not reside in the county, and has no agent in the county, the statute does not provide for giving him notice, other than by publication. In such a case, by section 7278 of the General Statutes of 1909, he has twelve months after the location of the road in which to file an application for damages with the county commissioners, who shall determine the amount of damage sustained by him. Mary G. White and W. F. Guthrie resided outside the state of Kansas. G. L. Guthrie had his place of residence in Atchison, Kan., but had been personally absent from the county most of the time. He is an engineer, engaged in construction work in this and foreign countries. It does not appear that he was in Atchison county, Kansas, at the time these notices were served. Personal service of notice could not be had on these parties in Atchison county. That notice must be served on their agent, or not at all. Under these circumstances, it was not necessary that the parties here complaining be served with personal notice.
3. Was notice to W. W. Guthrie notice to these com plaining landowners? The complainants in these cases are children, and beneficiaries under the will, of W. W. Guthrie, deceased, and are tenants in common of the land affected by this road; W. W. Guthrie was the only one of the complainants who resided in Atchison, upon whom personal service of notice could be made in Atchi-son county. For a number of years he had been looking after the interests of his co-tenants, under the direction of W. F. Guthrie, who had been appointed especially to represent and look after the interests of his brothers and sister. W. W. Guthrie looked after the land, rented the same, collected the rent, paid the current expenses, and paid the taxes. He was such an agent as is contemplated in section 7277 of the General Statutes of 1909, upon whom service of notice should be made. Notice to him was notice to the plaintiffs, although, in the notice, there may have been a mistake in the names of those owning the property affected. It was then his duty to notify his principals of these proceedings.
The defendants contend that the plaintiffs have waived their right to complain, because of their appeal from the order and decision granting this road. We will not discuss this question, because, in our opinion, the road was legally laid out, although the record of the proceedings is defective.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was commenced by Minnie C. Scholz and Charlotte L. Hoth, respectively the daughter and widow of William Hoth, deceased, against Henry Hoth, son of William Hoth, to recover a tract of land, and for other relief. The jury returned a verdict against the plaintiff, Minnie C. Scholz, and in favor of the plaintiff, Charlotte Hoth. Judgment was rendered accordingly, and the defendant appeals from the portion of the judgment adverse to him.
William Hoth purchased the land in controversy in-1898 for the sum of $1700, and retained the legal title at the time of his death, which occurred in 1905. About a year before his father’s death, Henry Hoth married and moved upon the land. He has occupied it ever since as his home, except that sometime after his father’s death, at the solicitation of his mother and sister, he moved to the farm which they occupied and which had belonged to his father, known as the “home .place,” and from there farmed the two tracts for several years. In November, 1910, Henry procured his mother and sister, to execute and deliver to him a deed of the land in controversy. Charlotte Hoth was old and forgetful, and Mrs. Scholz brought the action without consulting her mother, for the purpose of canceling this deed.
Evidence was introduced relating to the mental capacity of Charlotte Hoth, and relating to undue influence and duress practiced on both plaintiffs by the defendant, and the court submitted to the jury the question of the validity of the deed, with the result stated. The defendant assigns some trial errors relating to this branch of the case which this court regards either as not well founded or as not prejudicial, and so far as the judgment sustains the deed as to Mrs. Scholz and sets aside the deed as to Mrs. Hoth, it will not be disturbed.
Henry Hoth pleaded facts showing that the land was originally purchased for him under a verbal arrangement with his father, whereby he became and was the , owner in fact, the legal title being held by his father as security for a portion of the purchase price. Evidence was offered tending to sustain this claim, but the court refused instruction’s asked by the defendant submitting the question to the jury, doubtless on the ground that the evidence was not sufficient to warrant more than a finding that William Hoth had intended to give the land to his son but had not vested him with title. This court is inclined to believe the jury should have been allowed to pass upon the matter.
Without attempting to state all the facts which the jury might have taken into consideration and all the favorable inferences which might have been derived from proved facts, it appeared that Henry Hoth furnished $125 of his own money as a portion of the consideration paid for the land. His father borrowed all, or substantially all, of the remainder of the consideration. Henry was then sixteen years old. When Henry was twenty-six years old he married, and by this time he had repaid all the money advanced by his father by work upon his father’s farm. All the evidence is that Henry was a good worker and worked faithfully upon his father’s farm from the time he was twelve years old until he married. When he was about eighteen or twenty years of age he undertook to run the business of his father’s farm, which--consisted of farming and buying and selling stock, and for the last seven or eight years that he was on his father’s farm he bore all the responsibility because of his father’s poor health. There is no evidence that he ever received any compensation for work done after he became of age. Upon his marriage Henry’s father told him, in the presence of his wife, the place was his own and to go ahead and improve it. He then took possession. The land when purchased was vacant, unimproved, sandy land which had to be protected and fertilized to make it productive. Henry built a house and barn, planted trees, erected fences, and hauled hundreds of loads of manure upon the land, so that it is now worth in the neighborhood of $10,000. At no time before his father’s death did his father make any claim to the land or claim that Henry owed anything for the land, and no claim that he owed anything for the land has been made by his mother or sister since his father’s death. Neighbors testified that they had often heard William Hoth speak of the land, and that he always referred, to it as Henry’s place. His mother testified that she thought Henry’s father gave the place to him and that she thought Henry had a deed to the place. His sister testified she knew Henry’s father told him he was to have the place and that it was her father’s intention to give him a deed. There never was any dispute or difference respecting Henry’s claim of ownership until after his sister’s marriage, and the trouble then arose between Henry and his sister’s husband.
From the foregoing outline of the evidence favorable to the defendant it is clear that if such evidence were believed ownership in Hehry Hoth was well established. The trial court’s difficulty doubtless lay in conceiving a statement of the conditions under which ownership was acquired. The jury, however, might well have found the terms of the purchase in the evidence narrated — a purchase for Henry and in part with Henry’s money, the remainder of the purchase money borrowed by William Hoth, to be repaid in a manner possible for Henry, and title taken in William Hoth, to be held until he was repaid.
In the case of Lyons v. Berlau, 67 Kan. 426, 433, 73 Pac. 52, it was held that an agreement relating to the title to land may be inferred from circumstances. In the case of Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396, it was said:
“An oral agreement that operates as a transfer of land must, of course, be made out by clear and satisfactory proof, but it is not essential that it be established by direct evidence. If the facts and circumstances brought out are such as to raise a convincing implication that the contract was made and to satisfy the court of its terms, and that there would be no inequity in its enforcement, it is enough.” (p. 700.)
It is contended that a new Trial of the issue just discussed should not be granted because if found in favor of the defendant Charlotte Hoth would still have the same interest in the land which the judgment rendered leaves her, by virtue of the statute which reads as follows:
“One-half in value of all the real estate which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property in fee simple, upon the death of her husband, if she survives him.” (Gen. Stat. 1.909, § 2942.)
The case of Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56, is cited in support of this contention. In the Flani-gan case a period of time elapsed after the purchase of land by a donor for a donee before the gift to the donee became effective. Consequently a majority of the court held the statutory interest of the donor’s wife attached. In this case, assuming the defendant’s position to be true, there was no gift of the land in the proper sense of that term, and William Hoth at no time had any beneficial ownership of the land by title either legal or equitable. He merely held the title to protect his advancements, on account of his son’s minority and means of making payment. Henry Hoth was in fact the owner of the land from the beginning, and his father’s position was substantially that of a mortgagee, and, of course, the statute has no application to such a relation.
The judgment is modified in' accordance with this opinion, and the cause is remanded for a trial of the single issue respecting the defendant’s claim of ownership.
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The opinion of the court was delivered by
Porter, J.:
Plaintiff brought this action to recover the value of a three-fifths interest in ninety-five acres of wheat, claiming that he had purchased from the tenant his interest therein by a bill of sale. The defendant recovered judgment for costs, and the plaintiff appeals.
In February, 1912, the defendant, H. B. Kilborn, entered into a contract with D. W. McKee, by which he agreed to sell to McKee a half section of land in Reno county for $20,000. The first cash payment of $500 was due January 1, 1913, and McKee was to pay six and one-half per cent interest on the 15th day of February, annually. He was given possession of the land, and had all the crops and income from the land for the year 1912, although the contract gave Kilborn a lien on one-half of all crops for the payment of interest. There was a provision for a forfeiture without any declaration, or act, or notice on the part of Kilborn if McKee failed to make the payments in accordance with the contract.
McKee defaulted in the payment of the principal due on the first of January, 1913, and also failed to pay the interest, amounting to $1300, due February 15, 1913. The plaintiff, Fry, claims under a lease executed ■September 2, 1912, by which McKee leased to Wade Britton the land for one year beginning .March 1, 1913, and McKee permitted Britton to sow ninety-five acres of wheat in the fall of 1912. Britton was to pay McKee two-fifths of the crop delivered in Sterling.
On March 14, 1913, McKee paid $620.50 to Kilborn to be applied on the interest, saying he expected to pay the balance soon. ■ Shortly thereafter he sent word to Kil-born that he would be unable to raise the balance and for Kilborn to go ahead and run things there. He had moved away from the farm, and was then living in Hutchinson. On the 25th day of February, 1913, Wade Britton, the tenant of McKee, sold to Fry, the plaintiff, his interest in the ninety-five acres of wheat for $237.50, and gave to Fry a bill of sale for the same. Britton moved away from the farm, and turned the written lease over to Fry. Fry testified that it was his intention to take up the lease, and that he was going to farm the land in spring crops; that his agreement with Britton was that when Britton moved off the place he would move on, and would harvest the wheat and deliver the landlord’s two-fifths of the crop, according to the terms of the written lease.
The plaintiff and.the defendant had conversations; one on May 1, another on June 1, and another June 24, in which Kilborn told Fry not to harvest the wheat; that he was going to cut it himself. He afterwards harvested and appropriated all of the wheat. The plaintiff thereupon brought this action to recover the value of his three-fifths interest in the crop, and in his petition set out copies of the lease from McKee to Britton, and of the bill of sale to himself. The defendant answered pleading his contract with McKee, the latter’s failure to comply with the contract, and alleging that he had taken possession of the premises upon forfeiture of McKee’s rights under the contract of sale. He further alleged that he had taken possession of the premises prior to March 1, 1913, when the lease to Britton was to commence.
The appellant contends that while time is made the essence of the contract between Kilborn and McKee for the sale of the land, the provisions of forfeiture were for the benefit of the seller and may always be waived; and it is insisted that the fact that Kilbom accepted a payment from McKee as late as March 14, 1913, and allowed him further time on the balance due, must be held as a waiver of the forfeiture. While the evidence would indicate very strongly that Kilborn did not elect to forfeit the contract as early as stated in his answer, March 1, 1913, nevertheless by the terms of his contract he had the right to forfeit it at any time without notice upon failure of McKee to make the payments. We do not think it can be held that his standing by and seeing Britton put out a crop in the fall of 1912 would estop him from claiming a forfeiture for failure to pay the principal and interest at any time thereafter. The defendant relies mainly upon two points: first, a provision in the written lease between McKee and Brit-ton, by which Britton expressly agreed that he would not sublease, release, or assign the premises without the written consent of McKee. There is no showing that McKee consented to the bill of sale from Britton to Fry; and there is evidence tending to show that very shortly after he had made the payment to apply on-interest he notified Kilborn that he would not be able to comply with his contract, and that Kilborn might take possession of the land. The second point upon which the defendant relies is section 4700 of the General Statutes of 1909, which provides:
“No tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest or any part thereof to another without the written consent of the landlord or person holding under him.”
This section has been construed to make such an assignment voidable only (Mabry v. Harp, 53 Kan. 398, 36 Pac. 743), but it is not claimed that any subsequent assent of McKee had been obtained, so as to render the transaction valid.
There is a further claim by the defendant that the contract of sale between himself and McKee prohibited by its own terms an assignment or leasing of the premises, unless the same was endorsed upon the contract. The particular language of the contract of sale upon which this contention is based reads as follows:
“And it is further stipulated that no assignment of the premises shall be valid unless the same shall be endorsed hereon.”
It is, to say the least, doubtful whether this provision can be construed to prohibit the purchaser of the land from exercising the rights of an owner and of leasing the premises without the consent of the seller. If, for instance, McKee had complied for a number of years with his part of the contract, and had made the annual payments of principal and interest, it would seem that he would have the same right that any other purchaser of land would have to lease it to another, subject, of course, to the provisions of the contract by which Kilborn was to have a lien on one-half of the crop for the payment of the interest. Without deciding this question, however, we think the plaintiff can not recover for two reasons: First, under his contract with McKee the defendant had the right at any time to take possession of the premises and declare a forfeiture for the nonpayment of principal or interest; second, by the terms of Britton’s lease under which the plaintiff claims, as well as by the terms of the statute, the assignment was at least voidable.
For the reasons stated the judgment must be affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff in its petition alleged that about June 30, 1911, the administrative council of the Grand Lodge of Masons of the state of Kansas recovered a judgment against the plaintiff for $6760 and costs; that prior to such recovery the defendant company had succeeded to the rights of the plaintiff in the action just mentioned; that the judgment was collected in full and was for a certain sum composed of two items, $4465.76 and $934.09, making $5399.85, and interest, being moneys belonging to the grand lodge which the grand treasurer had paid to the plaintiff bank on account of his individual indebtedness to it, and which sums were a part of the grand lodge funds which the defaulting grand treasurer should have had in his hands at the time of his death; that the grand treasurer’s administratrix had been presented with a claim by the grand lodge for the total amount of the defalcation, which claim was allowed by the probate court and assigned to the fifth class; that afterwards the estate paid to the defendant a dividend of twenty-five per cent of the total claim of the grand lodge; that the estate was primarily liable for the whole of the shortage, which was $16,359.99 and the interest thereon, which included the two items making up the principal for which judgment had been recovered against this plaintiff; that the twenty-five per cent dividend included $1339.18 of such principal and accrued interest, amounting to $1455.88, and judgment was asked for this amount with interest. A demurrer to the petition was sustained, and the plaintiff appeals and contends that the petition shows on its face that the shortage was composed of separate and distinct items standing on their own bases; that the liability of the plaintiff was secondary and not primary, and simply that of surety on the debt of the former grand treasurer to the extent only that the plaintiff had profited by the payment of his individual debts with grand lodge funds; that it was under obligation to make good only the amount so received if the grand treasurer or his estate did not, but that whenever the estate made good a portion thereof the plaintiff could be held liable for the balance only. The defendant denies that the grand lodge claim against the estate was made up of separate items and asserts that it simply represents a total of the grand treasurer’s misappropriations and constitutes one legal claim against the estate which could be satisfied only by full payment; that “To the extent of the judgment obtained against it, the appellant was a party to this misappropriation and was liable for that amount. Both Sarbach and the bank were joint wrongdoers and each liable to the grand lodge for the full amount of the misappropriation which resulted from their joint acts that the grand lodge or its assignee could rightfully pursue the remedies which were adopted until the entire amount of the defalcation had been paid; that whether or not the plaintiff could, after the payment of the judgment against it, recover from the estate twenty-five per cent thereof, it could not diminish the rights of the grand lodge or of the defendant its assignee.
Thus we have presented a most interesting law question and one so novel that it may have to be decided more upon principle than upon precedent.
It is apparent and indeed it is conceded that the bank could be held liable for only such portion of the entire shortage as it was instrumental in causing, which was $5399.85. Had this sum with interest been made good before the grand lodge’s claim was filed with the administrator, such claim instead of being for $16,359.99 would have been the difference, and the grand lodge or its assignee could look-no further to the plaintiff bank. It is equally clear that the entire defalcation constituted one claim for which the estate was primarily liable, whether made up of one or many items, and that to the extent of $5399.85 and interest the plaintiff was equally liable, regardless of whether such sum represented one or more items. In other words, in so far as both were jointly liable, such liability was not affected by the question as to what separate transactions and sums went to produce it. Had the bank and the former grand treasurer jointly ' caused the entire loss, so that the bank and the estate would be jointly and severally liable for the whole shortage, then clearly both could be pursued until one or both paid in full, and a partial satisfaction by one would be no defense to the other against liability for the entire unsatisfied balance. That is, if each were liable for all, then a twenty-five per cent payment by one would leave both responsible for the remaining seventy-five per cent. The .peculiarity of the present situation is that while the estate was liable for all, the bank, was liable for only $5399.85 and interest, and had the estate paid seventy-five per cent, the bank could be looked to for the remaining twenty-five per cent only, for the creditor can have but one satisfaction, though many judgments. Here the creditor in effect had a judgment against the estate for $16,359.99, and against the estate and the bank jointly for $6760, the amount due when the judgment was rendered. It may proceed against both only until the latter sum is realized, and then against the estate for the remainder. Indeed the bank was never a judgment debtor for any sum beyond $6760 and interest. Now it so happens that when the bank satisfied this judgment in full, leaving the estate liable for the remaining loss, the latter had paid a twenty-five per cent dividend, or one-fourth of the entire shortage, which left several thousand dollars still due the creditor. As between the bank and the creditor, the former has only done its duty, and the latter is not liable for any money had and received from the estate, because such money belongs to the creditor and the creditor is still the loser by some thousands of dollars on account of the defalcation. If the estate in paying the creditor the twenty-five per cent dividend used any of the bank’s money, then possibly the bank may look to the estate therefor. (Fort Scott v. Railroad Co., 66 Kan. 610, 72 Pac. 238.) But that problem need not be solved until it directly arises.
It is argued that when the estate paid the dividend it thereby paid twenty-five per cent of the bank’s liability, which had already been paid in full, making one hundred twenty-five per cent received by the defendant, the dividend covering the entire shortage and of necessity every constituent element thereof, and being a payment by compulsion and not by choice must be applied pro rata in liquidation of all the constituent items. In Washbon v. Bank, 86 Kan. 468, 121 Pac. 515, it was sought to prevent the grand master from asserting against the bank a claim included in the one allowed by the probate court, and it was urged that by presenting the entire claim and having it allowed against the estate the grand master was estopped to pursue a remedy inconsistent with such proceeding; that having elected to treat the claim as a debt against the estate as for a conversion, he could not at the same time pursue the bank upon the theory of still owning the proceeds of the check there in controversy. It was held, however, that both remedies could be consistently pursued until there was one satisfaction. In Sarbach v. Deposit Co., 87 Kan. 774, 125 Pac. 63, it was shown that the administratrix had collected about $32,799 with which to meet debts of over $76,000 and had asked an order of distribution among the undisputed claims, and had been directed to pay twenty-five per cent of all which had been allowed except that of the grand lodge which had been ordered to be held in abeyance until it could be determined how much could be recovered by the lodge in its suits against various banks and individuals. The district court on appeal directed the administratrix to pay without regard to the pendency of the cases referred to, and that order was affirmed by this court. It was there contended that the company should not be allowed to collect twenty-five per cent of its claims against the estate until it should appear whether it could collect more than seventy-five per cent from other parties sued, and that the other suits were for portions of the identical money which should have been in the hands of the defaulting grand treasurer. But it was said;
“We think the appellee has the same right to the twenty-five per cent dividend as other creditors of the same class, and if, in any of the pending proceedings, any overplus should be recovered the creditor must account to the estate therefor, but until such contingency happens neither of the debtors who have participated in the wrongful diversion of the fund in question can require the claimant to stay proceedings until it is seen how much some other debtor may be compelled to pay.” (p. 777.)
The present proceeding is one step still further in advance, but we think it is governed by the same rule. In paying the judgment against it the plaintiff only performed its duty towards the defendant, and only paid what it then owed the defendant. Upon such payment the account between the two parties was square. Their controversy was ended. The incident was closed. True, when this payment was made the estate had paid the defendant towards its liability a sum amounting to one-fourth its total, but this still left three-fourths of such total due, save as diminished by the portion paid by the bank, and should the defendant now be compelled to return one-fourth of the amount formerly paid to it by the bank, such one-fourth would be a complete loss to the defendant and a like gain to the bank.
The plaintiff cites authorities holding that the term “dividend” means a pro rata application to every item of a claim, but the situations presented by these cases are generally those of secured and unsecured claims, and plaintiff contends that the bank is in the position of a guarantor or surety for the defalcation, and that the rule announced in these decisions applies. We think the difficulty with this proposition is that while the bank was in a sense in the position of guarantor or surety it came into that position by virtue of a tort committed jointly by itself and the former grand treasurer, and is held for the shortage not on account of a suretyship or guaranty voluntarily entered into, but as a matter of law on account of its own wrong, for which the injured party has a right to call upon the bank to respond in full, regardless of what other wrongs the estate may answer for. Sureties are favorites of the law, and guarantors may at least stand upon their contract rights, but joint wrongdoers are in another class and not entitled to the same consideration. But counsel say this very defendant in Washbon v. Bank, 87 Kan. 698, 125 Pac. 17, took the position of having waived the tort and can not now be heard to invoke the doctrine of joint wrongdoing. It was there held that the action was not one for relief on the ground of fraud but one on an implied contract to' repay money fraudulently received. In the opinion it was said:
“The bank must have known that Sarbach had no authority to loan these trust funds to any person or for any purpose. It participated in the fraudulent use of the moneys for its own profit. . . . The bank also knew that the purpose of the Toan was to enable Sarbach to perpetrate a fraud upon the grand lodge.” (p. 710.)
Counsel say that the effect of the bank’s knowledge of the source of the money taken was to raise a promise by implication where it had failed to make such promise (to repay) expressly, and that “with that the tort spent its force.” We are unable to agree with this contention but are impelled to conclude that the bank is not in a situation to force a return by the defendant of anything received from the estate.
It is urged that in case of an involuntary payment like that of the dividend here involved, the option of the creditor to apply it to the unsecured portion of the debt does not exist, but that a pro rata application to all the debts must be made. The rule, however, is said to be that usually the application by the court will in cases of voluntary payment be pro rata, “but in some jurisdictions involuntary payments insufficient to pay all claims are applied by the court so as to pay the unsecured rather than the secured claims.” (30 Cyc. 1228.) Again: “At common law, however, and in most of the states in this country, while there are cases laying down the rule that the creditor should be preferred, yet the general rule is that the court will make the application in such a manner, in view of all the circumstances of the case, as is most in accord with justice and equity and will best protect and maintain the rights of both debtor and creditor. . . . It is generally held that the court will apply a payment ... to an unsecured debt in preference to one for which the creditor is secured, to a debt for which the security is most precarious where the creditor holds more than one security.” (30 Cyc. 1240-1243.) Without deciding the exact rule of the application of payments which should govern in this case it is sufficient to say that the plaintiff can not rightfully complain of the application actually made. (See Medical Co. v. Hamm, 89 Kan. 138, 130 Pac. 650.)
No question is made by the defendant touching the right to recover an involuntary payment were such recovery otherwise proper, hence the correctness of plaintiff’s position in this respect appears to be conceded.
The allegations of the petition that the judgment was made up of separate' items which formed a. part of the defalcation have not been overlooked, but they are not deemed sufficient, if true, to require the application of the dividend contended for by the plaintiff.
Having carefully considered each point raised we find no error in the record, and the judgment is .therefore affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This is another of those actions brought against the Atchison, Topeka & Santa Fé Railroad Company for damages claimed to have resulted from the negligence of the company in permitting fire to escape from its engine No. 9, on October 12th 1871. We have already decided four of those cases, to-wit, that of William M. Stanford, (12 Eas. 354,) of Neil Campbell, of Joseph Rickabaugh, and of Stephen Shaw, (ante, 200, 209.) In deciding those cases we have decided every question involved in this case, and several others besides. In fact, only the main questions involved in those other cases are involved in this, to-wit: 1st, May negligence on the part of the railway company in permitting fire to escape from its engines, be shown wholly by circumstantial evidence, or must it be shown by some direct proof of some particular act of negligence? 2d, Where the fire which is negligently permitted to escape from the engines of the railway company, does not fall upon the plaintiff’s property, but falls on the property of another, setting it on fire, and then spreads by means of dry grass, stubble and other combustible materials, and passes over the lands of several different persons before it reaches the property of the plaintiff, and finally reaching the property of the plaintiff, at a great distance from where the fire was first kindled, sets it on fire, and consumes it, is the negligence of the railway company in such a case too remote from the injury to the plaintiff’s property to constitute the basis of a cause of action against the company?
As to the first question, we have decided that circumstantial evidence is sufficient; as to the second question, we have decided that the injury is not too remote to constitute the basis of a cause of action; and we are entirely satisfied with our decision of both of these questions. As to the first question, this case furnishes the strongest kind of evidence of the correctness of the decision. It was not within the power of the plaintiff to furnish any direct evidence of any particular act of negligence. It was shown by the defendant’s witnesses that the engine from which the fire escaped was a first-class engine, that it was in good order and condition, and that it was operated by a careful and skillful engineer, to the best of his knowledge and ability. Now for the purposes of this case we will suppose that all of this is true, except the mere fact of operating the engine; and indeed the jury so find. The only negligence that they find is carelessness on the part of the engineer in operating the engine. Now how could the plaintiff prove this carelessness or negligence on the part of the engineer by any direct evidence? If the engineer was guilty of any carelessness or negligence, probably he alone knew it; and possibly even he-himself would not have been fully aware of his own carelessness or negligence. Now the plaintiff proved that said engine on said 12th of October caused a large number of fires, a dozen or more; that other engines operated over the same track on the same day, and before and since, did not produce any such result; and that good engines properly managed would not under the same circumstances be likely to produce any such result. Now it would seem to us that such evidence would lead irresistibly to the conclusion that there was negligence somewhere. Of course it would not locate the negligence. It would not show whether the fault was with the engine, or with the engineer; whether the engine was good, but was out of order; or bad, though in order; whether the engineer was competent, but acted carelessly; of incompetent, though he acted as well as he knew. And if the engine was bad or out of order, it would not show in what particular it was bad or out of order. And if the engineer acted unskillfully or carelessly, it would not show in what particular he acted unskillfully or carelessly. Yet such evidence is competent, and it would be about the best that the plaintiff could from the nature of the case produce. Now when the jury found that the engine was good, and in proper condition, then they had to weigh the foregoing circumstantial evidence with the direct testimony of the engineer who testified that he managed the engine skillfully and carefully. And the jury had the unquestionable right to weigh both, and to determine the value of each. If they believed from all the circumstances of the case that the testimony of the engineer was wholly unworthy of credit or belief, they had the undoubted right to so find, and to wholly disregard it. They had the right to say that the circumstantial evidence of the plaintiff tending to prove negligence immeasurably outweighed the direct and positive testimony of the engineer declaring that there was no negligence. The court could not weigh the evidence. The law does not undertake to define what such evidence is worth. But the whole matter comes within the legitimate scope arid province of the jury. We would further refer to the case of the A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 370-372, and cases there cited. The decisions in Missouri are peculiar, and to some extent conflicting. (Smith v. H. & St. J. Rld. Co., 37 Mo. 287, 391, et seq.; Fitch v. Pacific Rld. Co., 45 Mo. 322, 325, et seq.; Coates v. M. K. & T. Rld. Co., 61 Mo. 36; same case, 3 Central Law Journal, 209.)
As to the second question, it is scarcely necessary to do more than to refer to the decision of this court in the case of the A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 375 to 379, where the question is discussed at length, and the authorities cited. We would however refer to the following additional authorities: Annapolis & Elkridge Rld. Co. v. Gantt, 39 Md. 116; Balt. & Ohio Rld. Co. v. Shipley, 39 Md. 252; Penn. Rld. Co. v. Hope, 1 Law & Eq. Rep. 272, case decided by the supreme court of Pennsylvania, Feb. 1876; Webb v. R. W. & O. Rld. Co., 49 N. Y. 420; Pallett v. Long, 56 N. Y. 200.
Since the promulgation of the decision in the Stanford case, an elaborate article on this same question has been written by Dr. Francis Wharton, and published in the Southern Law Review, ("Vbl. 1, New Series, page 729.) That article controverts the doctrine enunciated in the Stanford case. But we think the argument of the learned Doctor will be found to be wholly unsatisfactory, and the conclusion reached by him not founded upon either reason or authority. Even the decisions which he refers to, with some exceptions, do not as we think sustain his views. With reference to the irrelevant matters discussed by the Doctor we do not take issue. It is only upon the main proposition, that is, that the railroad company is responsible only for property destroyed by it by fire where the company directly communicates the fire to such property, that we take issue. He claims that where the railroad company does not directly set fire to the plaintiff’s property, but sets fire to some other person’s property, and that sets fire to the plaintiff’s, that the act of the railroad company is too remote a cause of the burning of the plaintiff’s property 'to constitute the basis for an action against the railroad company. Now, the word “cause” has various meanings, and shades of meaning. Philosophically speaking, the sum of all the antecedents of any event, constitutes its cause. Ordinarily however we consider each separate antecedent of an event as a cause for such event, provided however that the event could not have happened except for such antecedent. Taking this view of cause and effect, there may be many causes conjointly and consecutively contributing to produce one and the same final result. And these causes may differ vastly in their proximity or remoteness to or from such final result. But still, any one of them may, as we think, be selected as the responsible cause for such final result, provided it be selected in accordance with the rules of law settled and established-by the numerous adjudications of the courts. In the first place, such antecedent cause must be wrongful. For the rightful and bona fide exercise of a lawful power or authority can never be considered as the basis for a cause of action. Even if the fire from a railroad engine should fall directly upon the plaintiff’s property and consume it, the railroad company would not be responsible unless such company were guilty of some wrong. If the company should exercise reasonable diligence in procuring a good engine, and then should carefully manage the same, it would not be responsible for any unforeseen and fortuitous event which might result from the escape of fire from such engine, however disastrous the same might be to the interests of individual persons. The company can in no case be held liable for the escape of fire from its engines unless it is guilty of negligence in permitting the fire to escape. Secondly, the circumstances of the case should be such that the author of such wrongful cause could by the exercise of reasonable diligence be able to anticipate the final injurious result as_likely to occur, and as the natural and probable consequence of his wrongful act. For if some new cause, not the result of the first wrongful cause, not under the control of the wrongdoer, not such as he could by the exercise of reasonable diligence anticipate as likely to occur, and except for which the final injurious result could not happen, should intervene between the first wrongful cause and the* final injurious result, such wrongdoer would not be liable. His cause would be too remote to constitute the basis of a cause of action against him. It would be placed back of and behind another efficient cause, which he could not have had in contemplation when he put into operation his cause. Observing these rules and limitations, an unlimited number of causes and effects may intervene between the first wrongful cause and the final injurious result, and still the author of such wrongful cause be held responsible for the last as well as the first, and for every intermediate result. In the burning of prairie grass, like the case at bar, the number of causes and effects that may intervene between the first cause and the final result is illimitable. Each blade of grass is a separate and distinct entity, and the burning of each blade is both an effect and a cause. It is the effect of the burning of the blades immediately preceding it, and the cause, along with other blades, of the burning of the blades immediately succeeding it. And yet all these causes and effects are so intimately interlinked and blended with each other that we look upon the whole of them as constituting but one grand, united, continuous and single whole. We look upon the whole fire as only one fire, and the whole of these separate causes as merely one cause. The question then of liability in cases of this kind does not depend upon the number of causes contributing to produce the final result, nor upon the location of these causes with reference to each other in any grand concatenation or net-work of causes cooperating consecutively or conjointly, or both, to produce the final result; but it depends upon whether the cause put in operation by the defendant was wrongful, whether it was efficient, and whether the author thereof could at the time of putting it in operation havqanticipatecl the final .injurious result as likely to occur. ......
The questions in this case, are as follows: 1st, Was the railroad company negligent in permitting the fire to escape? 2d, Would the plaintiff's property have been destroyed by' fire as it was destroyed, except for the fire which the railroad company permitted to1 escape? 3d, Could the railroad company by the exercise of reasonable diligence at or before the time of permitting said fire to escape have anticipated the burning of the plaintiff’s property as likely to occur, and as the natural and probable consequence of permitting said fire to escape? If the first and third of these questions should be answered in the affirmative, and the second in the nega tive, the company would be held liable. And these are questions of fact entirely for the jury to consider and determine, under proper instructions from the court.
The judgment of the court below is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The principal question in this case is, as to the title of the plaintiff in error to certain lands in the Osage Ceded Tract. This question having been recently decided by the supreme court of the United States, (the court of last resort upon this question,) adversely to the plaintiff in error, it is sufficient for us to direct an affirmance of the judgment below in accordance with the conclusion reached by that court. Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Mason, J.:
Herman Wessels, a married man residing in Idaho, owned a tract of land in this state. On November 3, 1911, he entered into a written contract ' for its sale to Camel Williams for $5500. On November 7 he undertook to sell it for $6650 to O. P. Shearer, to whom he and his wife executed a deed, dated November 3, but acknowledged November 10 and 17, and recorded on the last-named date. Williams brought an action against Wessels for the specific performance of his contract, making Wessels’ wife and Shearer parties, and alleging, among other things, that Shearer had taken the deed with notice of Williams’ rights. A decree was rendered granting specific performance, but requiring the plaintiff to take the title subject to the interest originally held in the land by Mrs. Wessels, in virtue of her being the wife of the owner, and having at one time been a resident of Kansas, which interest she had transferred to Shearer. Shearer appeals and asks a reversal on the ground that he bought the land without notice of the plaintiff’s claim, and that the decree rendered is inequitable. Williams also appeals and asks that the decree be modified so as to award him a full title, or if that be not done, that he be allowed an abatement of the purchase price proportioned to the diminished value of his title due to the unextinguished interest of Mrs. Wessels.
Shearer maintains that the contract is too indefinite to be enforced, on the ground that it did not mention a mortgage on the land which Wessels orally agreed to pay off, and that it did not specify where the purchase money was to be paid and the deed delivered. It was not necessary that the written contract should mention the mortgage. Wessels contracted to give a good title, and this required him to take care of any lien not otherwise provided for. The contract was left at a bank. It contained a provision that Williams was to deposit $1000 with it, to be paid to Wessels when the deal was closed, and that $2000 more (substantially the balance over a mortgage that was to be assumed) was to be paid at the same time. The fair inference is that the money was to be paid and the deed delivered at the bank. Shearer also contends that the petition was defective in not asking specific performance against him. A point is made also that the evidence did not correspond with the allegations of the petition. It is apparent that when the pleading was framed the plaintiff was not fully advised of the facts. We think it sufficiently apprised the defendants of the nature of the plaintiff’s claim.
Shearer contends that he bought the land without notice of Williams’ claim, and that there is no evidence to the contrary. The evidence on the subject is not very explicit, but we think it sufficient to justify the inference that he had such information as put him on inquiry, and would, if followed up with due diligence, have brought to him knowledge of the actual situation. A witness gave substantially this testimony: I. J. Hysom, a real-estate agent, asked him to buy the land, but he refused, stating that he did so for two reasons, first because Williams was a friend of his, and second because he did not believe he could get a good title, knowing that the land had been sold on a contract; on the 4th or 5th of November, or a few days later, Shearer came to the office of this witness and told him he thought he was mistaken in what he had said to Hysom, that he would not get a good title knowing the. land had been sold under contract; the witness persisted in his opinion, saying that he wTould buy the land if he were not afraid to — that he would not buy knowing of the previous sale. Shearer contended that if he (Shearer) got the. deed he would get the title. Shearer gave a somewhat different version of this conversation, and insisted that it took place after he had secured his deed. The deed which Shearer received showed that the name of Williams had been written as grantee, and then erased. There was other evidence bearing on the matter, but this sufficed to impute to him knowledge that prior negotiations for a sale had progressed so far that a binding contract was believed to have resulted, and that a deed had been prepared, bearing the date November 3, naming Williams as grantee. It was sufficient, in view of all the circumstances, to warrant a finding that he was chargeable with notice of the claim of Williams. (Faris v. Finnup, 84 Kan. 122, 113 Pac. 407.) Complaint is made of the introduction of certain evidence, but any of it that was incompetent must be presumed to have been disregarded. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748.) A question is raised as to the sufficiency of the plaintiff’s tender of performance, but in view of the defenses made this is hypercritical.- In behalf of Shearer it is argued that the decree of specific performance against him is harsh and unjust. If he bought with notice of the Williams contract, as the court found, he voluntarily took the risk and suffers no legal or equitable wrong from the enforcement of a valid contract.
In behalf of Williams the contention is made that he should have been given a complete title to the land. A first reason assigned is that Mrs. Wessels has no interest in it because her husband is not a resident of Kansas, and it is necessary that he should die while a resident of this state in order for her to invoke the statute allowing to a widow one-half of the lands in . this state at any time owned by her husband, to which she has made no conveyance. (Gen. Stat. 1909, § 2942.) The section relied on to support this view reads:
“After allowing to the widow and children of any deceased intestate of this state the homestead provided in the next section of this act, and the personal property and other allowances provided by law respecting executors and administrators and the settlement of the estates of deceased persons, the remainder of the real estate and personal effects of the intestate, not necessary for the payment of debts, shall be distributed as hereinafter provided.” (Gen. Stat. 1909, § 2935.)
The argument is that the italicized words “the intestate” refer to the intestate already described, that is, to “any deceased intestate of this state,” so that all the subsequent provisions regarding the distribution of the property of intestates refer only to those who die while residents of Kansas. The words “of this state” are employed with obvious reference to the homestead provision, and while as a mere matter of grammatical construction they might be regarded as qualifying the term “the intestate” in the latter part of the section, we can not believe that to have been the intention of the legislature.
Williams maintains that he should have been given an absolute title to the property, on the ground that Mrs. Wessels, being a party, asserted no claim to it, and her interest can not be regarded as having passed to Shearer, because the transaction was tainted with fraud. Taking the facts to be as found by the court, “fraudulent” may be too strong a term to apply to the conduct of the defendants. After Wessels had executed the Williams contract, his deed to any one else who had notice of it could not affect the right of Williams to have it enforced, irrespective of the motives of the parties. But Wessels, the only person with whom Williams had a contract, could not convey his wife’s interest. Since he had promised to give Williams a clear title, good faith and fair dealing would seem to require that he should try to induce her to join in carrying out the agreement. But even if her refusal to sign the deed was at his instigation it was a lawful act on her part, since she had an absolute right to refuse for any reason she thought sufficient, or for no reason at all other than her own pleasure. Williams had a right to compel a deed from Wessels, but not from Wessels’ wife — the law gave him a remedy by which he could acquire all the interest held by Wessels, but that of Mrs.. Wessels was beyond his reach. In this situation Shearer received a deed from Wessels and his wife. Because of the knowledge he had of the prior contract he took the interest of Wessels charged with Williams’ equitable right to it, but he took the interest of Mrs. Wessels, as she held it, free from any such claim, unless he was incapacitated from doing so by the unconscionable character of the transaction. The extent of his offending was this — he undertook to •buy the land knowing it had been contracted to Williams, professing ignorance of the prior contract in order to make his purchase effective. This ought not to disable him from retaining any benefits of his bargain to which Williams had no legal or equitable claim. We therefore think the trial court rightly decided that Williams could not require the conveyance of the interest in the property held originally by Mrs. Wessels, and by her transferred to Shearer.
But while we decide that Williams could not exact more from Shearer than he could have required from Wessels, his remedy should be as effective against one as against the other. And Wessels was personally liable upon his contract, notwithstanding his inability to perform it in full. (Robertson v. Talley, 84 Kan. 817, 115 Pac. 640.) The question remains whether, having received a less title than he had bargained for, Williams should not have a corresponding abatement in the purchase price. On this matter there is some conflict, but the weight of authority, and as we think the better reason, supports the view that there should be an abatement in the price, or that the purchaser should be indemnified against loss, which amounts to practically the same thing. The purchaser does not receive what he bargained for, and by the usual rule in such cases should not be required to pay the full amount agreed upon. There is some practical difficulty in measuring the value of the interest in the land which he does not acquire, but not more than in many other instances where damages are assessed which are not capable of exact computation. The right of a wife with respect to land owned by her husband in this state is regarded as an existing interest, capable of conveyance (Mun- ger v. Baldridge, 41 Kan. 236, 243, 21 Pac. 159), and so far as affects the matter now under consideration is not substantially different from the common-law dower, the law concerning which in this connection is thus stated:
“The usual rule as to specific performance with abatement from the price is applied, in many of the states, to the case of a purchase from a married man, whose estate is subject to his wife’s inchoate dower right. The purchaser may have specific performance, with a deduction from the price of such sum as represents the present value of the wife’s contingent interest, estimated by the usual rules and tables. By the practice in a number of states, instead of making an abatement of a lump sum from the purchase-price, estimated as the present value of the wife’s inchoate dower interest, the court gives an indemnity to the vendee against such interest. ... By the rule in New Jersey the vendee will be indemnified against the wife’s contingent dower if the wife’s refusal to join was by collusion with, or the fraudulent procurement of, the husband; otherwise the vendor is not entitled either to an indemnity or compensation during the lifetime of the husband.” (36 Cyc. 744.)
(See, also, Note, 24 L. R. A. 764; Note, Ann. Cas. 1914 A, 207; 26 A. & E. Encycl. of L. 83.) Two very recent cases, one on each side of the question, are cited in 13 Michigan Law Review, 346, 347 — Hirschman v. Forehand, (Ark.) 170 S. W. 98; Long v. Chandler, (Del.) 92 Atl. 256.
The judgment is affirmed, with this modification: Unless Shearer shall elect to transfer the full title in consideration of the full purchase price named in the contract, the proportion by which the value of the land is diminished by reason of the outstanding interest shall be ascertained and deducted from the amount, upon payment of which the plaintiff is to receive the title subject to this interest.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note. The note was executed in the state of Missouri by Emmer Bowen and W. W. Payne, as makers, to The First National Bank of Kansas City, Missouri, as payee, and the action was brought by the payee against the makers in the district court of Wyandotte county, Kansas. All the parties reside in the state of Missouri. The plaintiff in error therefore claims that the district court did not have jurisdiction either of the parties or the subject-matter of the action, merely because the parties reside in Missouri, and because the cause of action arose there. We think however the court below had ample jurisdiction.
At the time of the commencement of the action an order of attachment was issued in the case against the property of the defendants below on the ground that they were nonresidents of the state of Kansas. (Code, §190.) No undertaking was given by the plaintiff below. (Code, §192.) The plaintiff in error also claims that these attachment proceedings are void, for the same reason that he claims that the court below had no jurisdiction of the cause of action. And in this we also think the plaintiff in error is mistaken. The plaintiff in error, one of the defendants below, moved the court below to discharge the attachment “for the reason,” as he then claimed, “that the affidavit and proceedings for attachment are informal, defective, and not according to law.” These are the only reasons he gives for his motion, and we give them in his exact words. The defects and informalities of “the affidavit and proceedings for attachment” were not sufficiently pointed out to the court below, and for that reason if for no other the court below did not err in overruling the defendant’s motion. The affidavit and proceedings appear however to be sufficient, and of course then there could be no error. The supposed defects pointed out in the brief of plaintiff in error are not sustained by the record.
The defendant Payne also moved the court below for a continuance of his case, and supported his motion by an affidavit. The court below overruled the motion, and said defendant now claims that this ruling was erroneous. The statute provides that —
“A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. If, thereupon, the adverse party will consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such evidence.” (Gen. Stat. 689, Code, § 317.)
The affidavit in this case was attempted to be made under this statute, but it is defective in several particulars. It does not show that the defendant Payne used due diligence to obtain the evidence for which he asked the continuance; and it does not state the evidence itself in any proper manner. The only supposed diligence that the defendant used was in having a subpoena issued by the clerk of the court below for the three absent witnesses whose testimony he desired to procure. But this was not diligence, for the defendant knew that said witnesses were all nonresidents of the state of Kansas,, and that a subpoena from that court could hot reach them. One of said witnesses was his codefendant, whose exact evidence or whereabouts he says he did not know. But it does not seem that he even attempted to learn his exact residence or whereabouts. The other two witnesses were persons whose residence he knew was in Missouri, and yet he made no effort to obtain their depositions. And he did not state what would be the testimony of these three witnesses. He stated the nature of certain evidence as tending to prove certain facts; but whether he intended to state that this evidence had any connection with the testimony of said absent witnesses, we cannot tell. His words with reference to said evidence are as follows: “Said evidence is of the following nature, to-wit: proving and tending to prove that defendant Payne was, at the time of the taking of the note herein sued on by plaintiff, only a surety or indorser on the same, and was so known to be at said time by said plaintiff; that said plaintiff, so as aforesaid knowing said party, released by its actions said defendant Payne from all liability thereundér; that plaintiff has accepted other security, and taken other notes in lieu of the one sued on.” This is all the evidence attempted to be stated in the affidavit; and there is nothing in the affidavit that specially connects it with said witnesses. But we suppose that the defendant intended that the court should infer that it was to come from said witnesses, as there is nothing in the affidavit that tends to show that it was to come from any other source. Then, assuming that it was to come from said witnesses, it is still insufficient. First, the facts are not stated in sufficient detail. They should be stated with the same detail that they would be stated by the witness if he were on the stand testifying, or if his deposition was being taken. They are to be stated so that they may be read as the deposition of the absent witness if the court should consider the affidavit sufficient, and the opposite side should choose to admit them. Second, these facts are not stated to be the facts which the witnesses would prove by their direct testimony. They are not stated to be the facts which it is believed the witnesses would testify to if they were present. They are not in fact claimed to be the testimony or evidence of the witnesses; but they are stated to be the facts which it is believed the evidence of the witnesses would prove and tend to prove. They are not the primary or original facts coming within the knowledge of the witnesses, and to which the witnesses would testify, but they are secondary facts, inferences, or conclusions, drawn from the' primary or original facts to which the witnesses would testify. They are not such facts as would fall from the lips of witnesses who might be on the stand testifying, but they are facts as they are usually alleged in pleadings, or are found by courts, juries, or referees. They are what are often known as conclusions of fact, or conclusions of law. They are such as must be proved by other facts, or inferred from other facts, and are not themselves the primary, original, proving facts. The statute requires that the party asking a continuance shall state in his affidavit the “facts he believes the witness will prove.” He is not authorized to state the facts which he believes will be proved by the facts which he believes the witness will prove. He must state the original primary facts as he would believe they would come from the witness, and not the conclusions or inferences which might be drawn from these facts. And he must state the facts in detail, so that they may be used as a deposition, and not in that general and comprehensive manner generally adopted for the statement of facts in pleadings, or in findings of courts or verdicts of juries. He should state the facts just as they would be stated by the witness in a deposition. This the defendant did not do. Now the granting or refusing of a continuance is largely within the discretion of a trial court; and unless it is shown that the trial court has abused its discretion in such a case, the appellate court will not reverse its rulings. (Swenson v. Aultman, 14 Kas. 273, and cases there cited.) We do not think that the court below has abused its discretion in this case. Probably however the court would not have abused its discretion if it had held the affidavit sufficient, notwithstanding the said defects.
Where a plaintiff sets forth in his petition a cause of action founded on a promissory note against two defendants as makers of the note, and duly alleges the execution of the note, and the defendants do not deny the execution of the note by an answer verified by affidavit, but one of them sets forth in his answer as a defense to the action that he was only a surety for his codefendant, and that by subsequent transactions between the plaintiff and his codefendant he was released and discharged from the payment of said note, it must be held that the execution of the note is admitted by the defendants; that there>is nonnecessity for introducing the note in evidence on the trial; that if no evidence were introduced on the trial, judgment should be rendered for the plaintiff for the amount of the note; and that the burden of proving said defense rests upon the defendant. (Reed v. Arnold, 10 Kas. 102, 104, and cases there cited.)
The defendant Payne has no cause for complaint because judgment was also rendered against his codefendant Bowen. (Craft v. Bent, 8 Kas. 328; DaLee v. Blackburn, 11 Kas. 190; Burton v. Boyd, 7 Kas. 17.) Bowen is not complaining of the judgment rendered against him.
We should have affirmed this judgment without any consideration of the record, as counsel for plaintiff in error has failed to refer us to the particular pages of the record which he wished to have us examine.
The judgment of the court below is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action to set aside a conveyance of a tract of land, and to subject the land to the payment of the debts of the vendor. Three questions are presented. It is insisted that the court erred in permitting an amendment of the petition after the commencement of the trial. As the petition stood it alleged the conveyance in 1870, the recovery of a judgment against the vendor in 1872, and that the conveyance was fraudulent and with intent to hinder, delay and defraud the plaintiff. It did not allege when the plaintiff’s claim accrued against the vendor, or even that it accrued before the conveyance. The court permitted an amendment to show that it accrued before 1868. This amendment was made before any testimony was received — was made upon the objection of defendants’ counsel that the petition did not state a cause of action without such an allegation. No suggestion of surprise, or application for postponement, was made. Indeed, it is not possible that the party was surprised, for the petition in the action in which judgment was rendered, in the same court, alleged as its cause of action an indebtedness created in 1867. Therefore the claim of error is rested upon' the simple proposition, that the court ought not at that time to have permitted such an amendment. We do not think the court abused its discretion in permitting the amendment; though we think as a general rule, and this does not seem an exception, that such amendments should be made upon terms. We cannot see that the defendants were materially injured by the amendment.
A second error is alleged in admitting a transcript of certain records of the circuit court of Warren county, Kentucky, the county in which all the parties resided. The principal part of this transcript consisted of verified answers of one of the defendants, the vendor of the land in controversy, filed in certain suits in that court, and were offered for the purpose of showing his financial condition which was stated by him in those answers. Of course, as admissions of one of the defendants, they were good against him. The remainder of the transcript, being an order of the court, and an opinion by its judge that a further disclosure was necessary, seem immaterial except perhaps as explaining the filing of an additional answer. We cannot see how either party was benefited or prejudiced by this portion of the transcript. -If error to admit it, it was because it was immaterial.
The principal error however alleged is, that the finding of the court is against the evidence. The court found that the conveyance was without consideration, and adjudged it void as against the plaintiff’s claim. The vendor and purchaser were respectively father and son. All the parties, as we have seen, resided in Warren county, Kentucky. The father was and for several years had been embarrassed, and unable to pay his debts. The conveyance was of nearly 800 acres of land in Kansas, including the 160 acres in controversy. The contract therefor, as defendants claimed, was made May 9th 1869, and the conveyance, which was by assignment and transfer upon the land-office receiver’s certificate, and not by separate deed,' March 23d 1870. The consideration as testified to, for none is stated in the conveyance, was $4,000, and was paid by the son in paying certain debts of the father. The son was an unmarried man, of from 23 to 27 years of age, and at the time of this controversy was clerk in the post-office at Bowling Green. Prior to that he had been clerk in the provost marshal’s office, whisky gauger, and for about a year carried on a grocery store in company with his brother. Prior to the conveyance he had never been assessed a dollar, and subsequently only to the extent of a mule valued at $75, and a horse valued at $100. Neither vendor nor purchaser testified in the case, but two sons of the vendor (brothers of purchaser) testified to the terms of the contract, and to the performance by the purchaser, giving names and amount of the father’s creditors whose debts were thus paid by the son. They also testified to the son’s having money at different times, and they with other witnesses testified to the young man’s industry, frugality, and correct habits. It does not appear that the purchaser ever came to Kansas to examine the lands before or after his purchase. Subsequently to the conveyance, the father came here, paid the taxes, filed the conveyance for record, made many inquiries concerning the land, and some statements concerning his intentions in reference to it, which appear to have been differently understood by those who heard them. This gives an outline of the testimony, and only an outline, for it comprises nearly two hundred pages of the record. The minor features of the case, the details of the testimony, it would be useless to attempt narrating. We have examined the entire testimony with care, and cannot say that the court erred in its conclusions. The silence of the parties to the transaction; the fact that the two principal witnesses for the defendants must necessarily have obtained much of their knowledge second hand; the conduct of the parties after the purchase in reference to the land; the successful and continued escape of the purchaser from the assessor; his employment, and apparent means of accumulation, during the years prior to the conveyance; the financial condition and embarrassment of the vendor, all tend strongly to support the conclusion of the court, that the conveyance was without consideration. At any rate, we do not see testimony in the record sufficient to justify us in reversing the judgment, and it will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This case is' presented to the supreme court on petition in error, and what is termed “a case made for the supreme court.” The defendant in' error now raises the question that said “case made” was not properly served and settled as provided by law. Section 548 of the civil code provides, that—
“The case so made, or a copy thereof, shall, within three days after the judgment or order is entered, be served upon the opposite party or his attorney, who may within three days thereafter suggest amendments thereto in writing, and present the game to the party making the case, or his attorney. The. case and amendments shall be submitted, to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. A certified copy thereof shall be filed with the petition in error,” etc. (Laws of 1871, page 274.)
Section 549 of the code provides, that—
“The court or judge may, upon good cause shown, extend the time for making a case, and the time within which the case may be served; and may also direct notice to be given of the time when a case may be presented for settlement after •the same has been made and served, and amendments suggested, which, when so presented, shall be settled, certified, and signed by the judge who tried the cause; and the case so settled and made shall thereupon be filed with the papers in the case; * * * and if no amendments are suggested by the opposing party, as above provided, said case shall be taken as true and containing a full re&ord of the cause, and certified accordingly.” (Laws of 1870, page 168.)
After this case was disposed of in the court below, the court then made an order that the defendant (plaintiff in error) have “leave to make, serve, and file a ‘case made’ in sixty days from the 17th of March 1874.” When the case was made is not shown. But it was not served or filed until May 19th — sixty-three days from March 17th, instead of sixty. This case should have been served, under the order of the court, at furthest as early as May 16th. Then the plaintiff below (defendant in error) should have had at least three days after such service within which to suggest amendments; and if the plaintiff had suggested any amendments within that time, then the case should not have been settled until due notice of the time thereof had first been given to the plaintiff below. But in the present case the “case made” was not served on the plaintiff until three days after the time within which it could legally be served, and then, instead of giving the plaintiff three days within-which to suggest amendments, and giving him due notice of the time when the case would be presented fiar settlement, the case was immediately presented for settlement, without any suggestion of amendments on the part of the plaintiff, without notice to him of the time for settlement, and without any appearance on his part; and on that same day the case was “settled, certified, and signed by the judge who tried the cause,” was “attested by the clerk, and the seal of the court attached,” and was “filed with the papers in the case.” We think the failure to serve the “case made” within the proper time was fatal to its validity, and that nothing was afterward done which could give it any vitality.
We have examined the “case made,” and find that even if we should consider it as having been properly served, settled, certified, attested, sealed, and filed, still we would have to affirm the judgment below; but as the “case made” was not properly served and settled, we shall have to dismiss the petition in error.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal action for murder in the second degree. The prosecution was instituted in Atchison county, and was removed therefrom on change of venue to Leavenworth county, where the defendant was tried, convicted and sentenced to ten years’ imprisonment in the penitentiary. The defendant now appeals to this court. This is the second time that this case has been in this court. (The State v. Potter, 13 Kas. 414.)
The first supposed error complained of by the defendant is the removal of the cause from Atchison county to Leavenworth county. The record upon this subject shows among other things the following proceedings had in the district court of Atchison county, to-wit:
“Upon application of the defendant, by his counsel Horton, Waggener, and Cochran in open court, it was ordered by said court, that the defendant, Isaac Potter, be granted a change of venue for his trial herein to the criminal court of Leavenworth county, it being within the knowledge of this court that prejudice against him exists which would prevent his having a fair trial, in said county of Atchison; there also having been two trials of this same offense, convictions in both cases. The application for removal having been made by defendant in open court, thereupon the court on its own motion, and for the reason aforesaid, and within his knowledge, does grant the change of venue in said. case; and the clerk will forthwith prepare a full transcript of the cause and forward the same to the clerk of the criminal court of Leavenworth county.”
It will be seen from the foregoing that the defendant did not only fail to make any objection to the change of venue, but that the change was actually made upon his application, and at his request. After said change of venue was granted the district court of Leavenworth county became the successor of the criminal court of Leavenworth county: (Laws of 1875, page 125;) and this cause was then taken by statute to said district court. The case was there regularly called for trial, the defendant and his counsel being present. The defendant did not then raise any question as to the jurisdiction of the court, but on the contrary moved for a continuance of the case until the next term of the court, and filed affidavits in support of his motion. The state then agreed that the affidavits should be read in evidence, on the trial, as the depositions of the alleged absent witnesses; and the case was not continued. A jury was then impanneled. The defendant then “challenged the array of jurors, and each and every one of them, for the reason that the same did not constitute a constitutional jury, and were not a jury of the county or district where the said offense was alleged to have been committed.” But again the defendant failed to raise any question as to the jurisdiction of the court. The state then introduced its testimony. , The defendant objected to the same, and to different parts thereof, for various reasons, among which was the following: “that the said court had no jurisdiction of the person of the said defendant, or the subject-matter of said case.” This was the first time that the question of jurisdiction was raised. “But [even then] no objection was made or pointed out to said court as to any irregularity in the transfer of said case from the said county of Atchison to this [Leavenworth district] court, nor was the atten- « . n _ , , tion oi said court called to any irregularities therein at said time,” or at any other time, before the verdict was rendered, or even before a motion for a new trial was overruled. The first time that any question as to any irregularity was raised in taking said change of venue was by the defendant on a motion in arrest of judgment. It would seem that the defendant chose to experiment upon the chances for an acquittal, and if convicted then to experiment upon the chances for a new trial, before calling the attention of the court below to any irregularity in taking the change of venue. Now, if the taking of the change of venue were wholly void, then the defendant would have been safe in making such experiments; for if the taking of said change of venue had been void, then the district couru of Leavenworth county would not have obtained any jurisdiction thereby to try the cause; and if the district court did not obtain any jurisdiction of the cause, then the defendant could have raised the question of jurisdiction at any time in that court, or he could even have waited and then raise the question for the first time in this court. But if the taking ■ of said change of venue were not wholly void, but merely irregular or voidable, then it would have been necessary for the defendant to raise any question as to the irregularity in taking the change at the earliest convenient opportunity. Now we do not think that the taking of said change of venue was wholly void, although it must be confessed that it was very irregular. But the irregularity was against the state, and not against the defendant. The order changing the venue should have been set aside on the motion of the state, if the state had asked for the same to be done. It might possibly have been set aside on the motion of the defendant, if he had asked that it should be done at any time before he made his motion for a continuance, or possibly at any time before the trial of the case was actually commenced. But it would have been beyond all reason for the court to have set aside the order granting the change after a trial had been completed, and the defendant found guilty. Even a defendant in a criminal case cannot trifle with the court in that manner. He cannot procure a change of venue irregularly, and then, when he is convicted, have the conviction set aside because of the irregularity. Or at least, he cannot have this done unless the order granting the change of venue is so entirely irregular as to be wholly void. In a case like the one we are now considering, the proceedings of the court granting the change should be construed liberally, so as not to hold the granting of the change void. That the district court of Atchison county had the power, on a proper application, and proper showing, to change the venue to Leavenworth county, there can be no question. The district court can change the venue in a criminal case on the application of the defendant in either of the following cases: “First, Where the judge of the court in which the cause is pending is near of kin to the defendant by blood or marriage. Second, Where the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him. Third, Where the judge is in anywise interested or prejudiced, or shall have been of counsel in the cause.” (Criminal Code, §173.) Fourth, “Whenever it shall appear, * * * that the inhabitants of the entire district áre so prejudiced against the defendant that a fair trial cannot be had therein.” (Criminal Code, § 175.) And, “Whenever it shall be within the knowledge of a court or judge that facts exist which would entitle a defendant to the removal of any criminal cause, . , ,. , , , , , on his application, such judge or court may make an order for such removal, without any [formal] application by the party for that purpose.” (Criminal Code, §178.) In the present case the defendant made the application for the removal, but it was informal, and even insufficient under the statutes. It was informal, because not in writing: (Criminal Code, §177;) and it was insufficient, because the facts upon which it was founded did not entitle the defendant to have the cause removed to another district. (Criminal Code, §§174, 175.) Atchison county is in the second judicial district, and Leavenworth county is in the first. The district court of Atchison county therefore erred in granting the defendant’s application. But the error was against the state, and not against the defendant. The error was in his favor. And therefore he has no right to complain. But while thé order granting the change was erroneous, it was not void. It was upon a subject over which the court had complete jurisdiction, and although erroneous is"nevertheless valid until set aside or reversed by competent authority. The state has never asked to have it set aside or reversed; and the defendant cannot legally ask to have it so done, as the order was made on his application.
The defendant seems to claim that he could not waive his constitutional right to be tried “by an impartial jury of the county or district in which the offense is alleged to have been committed.” This is a mistake, rjgj^ mere]y a personal privilege, bestowed upon the accused, which he can waive or insist upon at his option. The constitution provides that, “In all prosecutions, the accused shall be allowed to * * * have * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” (Const., Bill of Rights, § 10.) But the constitution nowhere provides that the accused shall in all cases, and under all circumstances, be tried by such a jury, and be tried in the county or district in which the offense is alleged to have been committed; nor does it anywhere provide that the accused shall not have the power to waive his said right or privilege. Said provision of the constitution does not pretend to confer power upon any tribunal, person, or body of persons. It is really only a limitation of the power elsewhere conferred by the constitution upon the government of the state to punish crime in the manner thought best by the lawmaking power of the state. The right to try, to convict, and to punish persons accused of crime, is conferred by other provisions of the constitution. And except for this provision, a law might be passed to try a defendant in a criminal action, even against Ms will, before any jury, and in any part of the state. But with this provision, a defendant in a criminal action can be tried by any other jury, and out of the county and district where the offense is alleged to have been committed, only with his consent. It is too late now to suppose that any person of full age and sound mind cannot waive a merely personal right, or personal privilege, although such person may be a defendant in a criminal action, and although such right or privilege may be conferred upon him by the constitution. Of course, there are many rights conferred upon individuals from considerations of public policy which are not merely personal privileges, and which cannot be waived. But they are such rights as public policy requires to be exercised, and from the waiver of which the best interests of the public would be likely to suffer. They are conferred upon individuals for the benefit of the public, and not merely for the benefit of the individual. But such rights may be conferred by statute as well as by the constitution. We do not suppose that any one will claim that any question of public policy can enter in so as to affect the question we are now considering.
It is also claimed by the defendant, that whenever a court grants a change of venue in a criminal case the defendant must be present in the court in person; and that in the present case the defendant was not present jn the court in person when said change of venue was granted. Now, it may certainly be questioned whether it is necessary for a defendant to be personally present in such a case. But even if it were necessary, we would presume in favor of the regularity and validity of the proceedings of the court below, where there is nothing to show the contrary, that the defendant was personally present in the court when said change of venue was granted. . The language of the order itself, liberally interpreted, would lead to such a conclusion.
The defendant also claims that the order granting the change of venue is void, because at the head of the order, where it is entitled, it reads “Information for 7 manslaughter,” instead of “Information for murder in the second degree.” There can be no question that the order was made in this case, and the mere clerical mistake of the clerk in writing “manslaughter,” instead of “murder in the second degree,” cannot invalidate the order.
The defendant also seems to make a point upon the ground that the district court of Atchison county did not make any order, in accordance with §186 of the criminal code, for the removal of the defendant to the jail of Leavenworth county. Now, as the defendant was personally present at the trial of his case in Leavenworth county, and has not shown that any inconvenience was caused by a want of said order, or that he ever asked for or desired any such order, we think that no substantial right of his was prejudicially affected by a want of such order. We suppose the failure to make the order was wholly immaterial.
The defendant claims that, “ It was improper for the court to admit evidence as to the age, size, and strength of the deceased,” and refers us to pages 25, 27 and 37 of 7 . ° ; £¡le pgcord. The only evidence found there, objected to, is evidence showing that the deceased was a man about sixty years of age, and about five feet and six or seven inches high. We see nothing very improper in this.
The defendant also claims that the court erred in instructing the jury that, “If any witness has willfully testified falsely as to any material fact in the case, then the jury should disregard all the testimony of such witness.” This instruction was erroneous. (Shellabarger v. Nafus, 15 Kas. 547.) Even where a witness has testified willfully corruptly and falsely, to a material fact in a case, still the question as to whether the jury should disregard the whole of his testimony should be left entirely with the jury themselves. But the defendant did not object or except .to the giving of said instruction; and hence he waived any error that may have been committed by the court in giving it. It may have been given for his benefit.
The defendant also claims that the court erred in refusing to give the 23d instruction asked for by the defendant, which instruction reads as follows:
“The jury are instructed that, unless they find from the evidence that in the altercation at Brack’s corner George Potter was aided, counseled, or abetted by Isaac Potter in what he did, they cannot take said altercation at Brack’s corner, or any acts, words, or conduct of George Potter into consideration in determining the guilt or innocence of defendant.”
This instruction would have been very misleading and erroneous if given to the jury. The defendant Isaac Potter, and George Potter and Walter Boyle, were in one wagon, and the deceased, Jacob B. Keeley, and John Keeley, a son of the deceased, and Michael Brannon, were in another wagon. All were traveling in the samé direction, Keeley’s wagon behind. Keeley’s wagon overtook Potter’s wagon, and passed it. Afterward, Potter’s wagon came up to Keeley’s wagon at said Brack’s corner. Here George Potter jumped out of Potter’s wagon, picked up a stone about the size of two fists, threw it at Keeley’s wagon, and hit the boy on the back of the head. Brannon testifies that then “George said he was very sorry he had hit the little boy; that he'would not have hit him for ten thousand dollars; that he wanted to kill the old man; that was his intention.” Mr. Keeley, the deceased, was the only “old man” belonging to either party. Now, Isaac Potter was present, and unquestionably saw and heard all that was done and said at Brack’s corner. Shortly afterward the Keeley party passed on. Afterward the Potter party followed and overtook them in Allbright’s lane. Just before overtaking them however, each of the Potters (Isaac and George,) and Boyle, armed themselves, each with a piece of a fence rail, and after overtaking the Keeley party, Isaac Potter, who is now the defendant, did then and there “kill the old man,” Jacob B. Keeley.
The defendant also insists “ that the court erred in refusing to give the 25th instruction asked for by'defendant,” which instruction reads as follows:
“The jury are instructed that under the evidence in this case they cannot convict the defendant of murder in the second degree.”
This instruction was unquestionably rightly refused. There was unquestionably sufficient evidence to prove the offense charged, and to sustain the verdict of the jury. Some of this evidence was however contradicted by other evidence; but we have nothing to do with weighing the contradictory or conflicting evidence introduced. That was for the jury.
The defendant also claims that “the court erred in receiving the verdict in the manner it did, over the objections of defendant.” The jury returned the verdict in the following form, to-wit: “We the jury find the defendant guilty as charged.-E. V. Flora, Foreman.” The court suggested that the verdict was informal, and permitted it to be amended so as to read as follows: “We the jury find the defendant guilty of murder in the second degree, as charged in the information.-E. V. Flora, Foreman!” Before the verdict was amended the jury, through their foreman, told the court that it was their intention to find the defendant guilty of murder in the second degree, and after the verdict was amended it was read to the jury, “and the jurors collectively answered that it was their verdict.” The court offered to have the jury polled, but neither party desired it. This was all done in the presence of both the defendant and his counsel. We perceive no error in this.
We have now considered all the questions raised by counsel, and we perceive no error in the rulings of the court below sufficient to authorize a reversal of the judgment below. The case has been very ably presented to us on both sides, and we would refer to the authorities cited in counsel’s briefs, and to the arguments of counsel, for a more elaborate discussion of some of the questions involved in the case than .we have been able to present.
The judgment of the court below must be affirmed.
All the Justices concurring..
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