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The opinion of the court was delivered by
Brewer, J,:
In July 1866, congress enacted as follows: “That for refunding to Jacob Whitecrow, John Sarahass, and others, trustees and stewards of the Wyandotte and Quindaro Mission, of the Kansas Conference of Methodist Episcopal Church, for the destruction of their church-building and library, $4,680, to be applied in rebuilding said buildings, and inclosing the graveyards of the Wyandotte Indians in the state of Kansas, and that the sum hereby appropriated be paid out of any moneys in the treasury not otherwise appropriated.” (14 U. S. Stat. at Large, 309.) In 1868 the said trustees loaned a portion of the money to defendant, and took her note and mortgage as security therefor. Subsequently the Wyandotte nation removed to the Indian territory. The same religious organization was preserved there, and thése plaintiffs are the successors in office as trustees of those who made the loan, at least they are so recognized by the Wyandotte Indians. Prior to the removal the organization had two places of worship, one in Quindaro, and the other in Wyandotte, and kept up services in both. It owned the building in the former place, but not in the latter place. It sold the building it owned, and from that time the preaching and meetings in Quindaro have ceased. It does not appear in whom the title to the building in Wyandotte was vested; but since the removal, the society in Wyandotte is wholly a white society, and known as the “Wyandotte Methodist Episcopal Church North.” It preserves the book of records kept by the W. & Q. Mission of the Kansas Conference, and that record shows an election prior to the commencement of this action, of five trustees, all white men, and two of them residents in Wyandotte county. It does not appear that the money granted by congress was ever used in the erection of a church-building in lieu of the one destroyed, nor does it appear what disposition was made of the balance of the money "granted.
This is about as full a statement of the facts as can be gathered from the case made. And upon these we remark, that the argument of the counsel for defendant in error, as to the general organization of the Methodist Episcopal church, its administration and control over local churches of that denomination, and their property, cannot be considered by us, for the facts concerning the same are not in the case-made, and they are not matters of which the court can take judicial notice.
It seems to us that the grant from congress was to a church organization among and of Wyandotte Indians, and by virtue of the governmental protection over these wards of the nation; that it was in no sense a grant to the great Methodist church to assist it in its missionary work. The Wyandotte church, as an Indian church, and not as a member of the Methodist denomination, was the beneficiary. The grant was not local, to the Methodist church in Wyandotte county, but tribal to the Wyandotte Indian church, whether that society remained in Kansas, or moved elsewhere. It was something which attached to and vested in an organization of the Wyandotte tribe of Indians. Whoever therefore are recognized by the Wyandotte nation as the official representatives of that organization, are entitled to the possession of this fund, and may maintain an action to recover it.
For these reasons the judgment must be reversed, and the cause remanded with instructions to grant a new trial.
All the Justices concurring.
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The .opinion of the court was delivered by
Valentine, J.:
This was an action brought by John G. Allen & Son against Shepard & Playford, on an account for goods sold and delivered. The judgment below was for the plaintiffs, and the defendants below, who are now plaintiffs in error, brought the case to this court. • The only assignments of error are as follows:
“First, That the said court erred in admitting the evidence on the part of the said Allen & Son, to which the said Shepard & Playford at the time objected.
“Second, That the said judgment was given for the said Allen & Son when it ought to have been given for the said Shepard & Playford according to the evidence, and the law of the land.”
I. The only evidence of the plaintiffs below, objected to, was certain testimony of the witnesses E. G. Nelson and W. Thompson. This evidence was offered by the plaintiffs below in rebuttal, and was proper rebutting evidence. It had reference merely to an interview between said witnesses and the defendant Shepard concerning certain notes, and what Shepard said about them. The evidence was objected to on the ground that it was irrelevant and incompetent. Now if it was irrelevant or incompetent, it was so merely because it was immaterial in the case. And the admission of immaterial evidence is generally not sufficient to require a reversal of a judgment. It is never so except where it tends to prejudice the substantial rights of the party against whom it is introduced. It is certainly not so in this case.
II. The trial of the case was before the court without a jury; and the court made a general finding in favor of the plaintiffs and against the defendants; and upon this general finding the judgment of the court below was unquestionably correct. This substantially disposes of the second assignment of error.
III. But the main argument of the plaintiffs in error, as we find it in their brief, is founded upon the claim that the finding of the court below is erroneous, and not sustained by sufficient evidence. Certain notes were given for the amount •of the account sued upon; and the principal question of fact contested in the court below was, whether said notes were given as absolute payment of said account, or whether they were given merely as conditional payment, as additional security, or as collateral evidence of the preexisting debt for which they were given. That the whole matter was completely within the direction and control of the parties at the time the notes were executed, we suppose no one will question. The parties could have made the giving of said notes serve as the absolute payment and extinguishment of said debt if they had so chosen. (McCoy v. Hazlett, 14 Kas. 430.) Or they could have made the notes serve merely as additional evidence of the debt, and allowed the original debt still to subsist and continue in force, if they had so chosen. Kermeyer v. Newby, 14 Kas. 164; Cooper v. Condon, 15 Kas. 572, 578. Hence, the only thing for the court below to do was, to hear the evidence offered on each side, and then to decide the question in accordance with the preponderance of the evidence. This the court below did. There was evidence introduced on both sides, and the court below upon this evidence decided in favor of the plaintiffs below. We cannot disturb that decision. There was sufficient evidence to uphold the same. What the decision should have been, if there had been no evidence introduced on either side upon the subject, is a ques.tion which is not now before us. Or upon whom would rest the burden of proof in such a case, we need not now decide. The weight of authority however would seem to be that the original debt in such a case would, prima faeie, continue to exist; that the burden of proof to show that it had been paid or extinguished by the execution of promissory notes therefor, would rest upon the debtor; and that if no evidence were introduced except that of the mere execution of the notes, it would be presumed that the original debt still continued in force, unpaid and unextinguished. (Kermeyer v. Newby, supra; 10 U. S. Dig., First Series, 61 to 74, and cases there cited.)
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The facts of this case are substantially as follows: On July 21st 1871 the city of Salina was and has since hitherto been a city of the third class. On that day said city passed an ordinance providing for the issuance of licenses upon certain terms and conditions to persons to sell intoxicating liquors, and providing for punishing by fine such persons as should sell intoxicating liquors without taking out or having such a license. Said ordinance with some amendments is still in force. During the year 1874 the defendant, Oscar Seitz, was a druggist, and kept drugs, medicines, and intoxicating liquors for sale in said city of Salina. He did not take out or have any license to sell intoxicating liquors. He employed one J. M. Champion as a clerk in the drug store, and authorized Champion to sell said drugs, medicines, and intoxicating liquors. On May 16th 1874 said clerk sold to one Claus Fair in said drug store one gallon of said intoxicating liquor. The city of Salina immediately commenced this prosecution against the defendant for selling said liquor in violation of said ordinance. The action was commenced before the police judge of said city. It was afterward taken on appeal to the district court, and there tried again on its merits. The defendant was found guilty in the district court, sentenced to pay a fine of $50, and he now appeals to this court.
The defendant claims that all the proceedings connected with this case from the beginning to the end were void; that the ordinance was void; that the proceedings before the police judge were void; that the proceedings in the district court were void; that neither court had any jurisdiction to try the defendant for such supposed offense; and that the district court committed other errors during the trial of the cause. Every claim of the defendant however we th.ink is untenable, and therefore every question raised by him must be decided against him. The said ordinance is valid. (Dramshop Act, Gen. Stat., pp. 399, 400, §§ 1, 2, 3; Laws of 1869, pp. 86, 87, §§ 28 and 29, and especially subdivisions 4 and 5 of § 29; Laws of 1871, ch. 60, §§ 23, 48, 50, 66, 94; Laws of 1872, p. 234, § 2; The State v. Pittman, 10 Kas. 593, 597; City of Emporia v. Volmer, 12 Kas. 622, 633; Neitzel v. City of Concordia, 14 Kas. 446; Williams & Pattee v. Louis, 14 Kas. 605.) And said courts had jurisdiction to try the cause. (Laws of 1871, ch. 60, art. 5, and especially §§72, 73, and 84, and cases above cited.) And we perceive no error in any of the proceedings.
Even if said liquor had been sold for medical purposes only, the defendant would still have been liable.
The judgment of the court below must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Smith, J.:
This was an action to set aside a will on account of lack of testamentary capacity of testatrix and undue influence. Judgment was for defendants. Plaintiffs appeal.
The plaintiffs were the three grandchildren of the testatrix, Emily B. Steward. They were her only heirs at law. The defendants are certain nieces and nephews and other relatives by marriage of testatrix, to whom property was bequeathed in the will. Mrs. Steward was about 88 years old when she died. She made the will in question in 1931, when she was about 85. She lived most of her life on a 120-acre farm near Fairview. In about 1898 she moved to Fairview. At the time of her death she owned the farm near Fairview and the home where she lived. She and her husband, Frank Steward, had three children, Charles D. Steward, Marvin D. Steward and Lenora Steward. Her husband and all three children died before she did. Charles D. Steward, one of the sons, left surviving him a widow, Jennie Steward, and three children, Donald P. Steward, Bernice Minton (formerly Bernice Trennepohl) and Dorothy Newlin. These three are the only heirs of testatrix and are the plaintiffs in this case.
Marvin Steward was survived by his widow, Isabel Steward. She died in April or May of 1934, after the death of testatrix. They had no children. Lenora Steward married a man by the name of Newlin and died in 1897, leaving only her husband surviving her. The defendent John Gregg is a son of testatrix’s sister. Defendant Daisy Gregg is John Gregg’s wife. Defendant Christina Finch is a niece of testatrix. Oscar Finch is her husband. Defendant Katie Reinhart was a sister of testatrix. John Reinhart is her husband. Defendants Jennie Stunz and Maggie Combs are also sisters of testatrix.
Under the will, which is sought to be set aside, Christina Finch, of Omaha, Neb., and John Gregg, of Ralston, Neb., each received an undivided one-third interest in the farm. John Gregg also was bequeathed the home in Fairview. Jennie Steward, mother of plaintiffs, and Isabel Steward were each bequeathed a one-sixth interest in the farm. All the personal property of which testatrix died possessed was bequeathed to Christina Finch and John Gregg, share and share alike. Plaintiffs, who, if testatrix had died intestate, would have inherited the entire estate, were left nothing. After testatrix left the farm Marvin Steward lived on it. He lived there until 1910. From that time on Jennie, the daughter-in-law of testatrix, lived on the farm with her son Donald and paid rent to testatrix.
Prior to 1923 testatrix was of average mental capacity. About 1923 Jennie Steward began to notice a deterioration in her mother-in-law’s mental faculties. In 1928 this condition became worse and it was necessary for Jennie to transact her business for her. While her capacity to make a will is the question in this case there can be little doubt that for some years before her death testatrix suffered from delusions.
The issues were framed on the question of whether or not testatrix had testamentary capacity at the time she made her will and whether she had been subjected to undue influence. With the issues thus framed the case was submitted to the court. The trial court found for defendants on both these issues. Judgment was entered accordingly.
The first point argued by plaintiffs is that the court erred in rendering judgment for defendants because the uncontradicted evidence clearly showed that testatrix, at the time of making the will which is sought to be set aside, suffered from an insane delusion that her grandchildren, plaintiffs herein, were not grown up and were supported by their mother, Jennie Steward, and was actuated by this delusion in not providing for her grandchildren in her will.
Since the argument made in this court turns upon the evidence introduced in the trial court, that evidence will be reviewed somewhat.
On April 8, 1931, Oscar Finch and Christina Finch called at the farm where Jennie Steward lived and said they were going to take Mrs. Emily Steward, whom they called mother, for a ride. At the suggestion of Jennie they brought her out to the farm for dinner. After dinner Christina and Oscar took Emily to Hiawatha to the office of a lawyer. Here they asked the lawyer to draw a will for Emily. Mr. Finch introduced her to the lawyer and withdrew. A will was drawn there, but when it was presented to Emily it was not just as she wanted it and she suggested some changes. Before these changes could be made Mr. Finch said he had to go back to Omaha that night and they all left. The following morning Mr. Finch came to the office and made arrangements for the lawyer to come over to Fairview at some time in the future to write a will. This will, as Emily Steward wanted it changed, would have left all of her personal property, the home in Fairview, and a one-third interest in the farm to Jennie Steward. It would have given Isabel a one-third interest in the farm and would have given Christina Finch and John Gregg each a one-sixth interest in the farm.
Our attention is directed to the following clause in that will:
“I make these provisions for my beloved heirs, with no more love, affection or appreciation of one than the other. I make provision more liberally to my daughter-in-law, Jennie Steward, because I am mindful of my three grandchildren, Bernice Steward, Donald Steward and Dorothy Steward, who are dependent upon her for their support. I am not forgetful of my beloved daughter Olive L. Steward, who has preceded me in death, but I am making no provision herein for her heirs.”
It will be noted that the three grandchildren named in that clause are the plaintiffs in this case.
On June 27, 1931, Mrs. Helvern, the wife of the lawyer to whom the parties had gone in the first place, wrote a will for Emily in her home at Fairview. The record is silent as to how Mrs. Helvern happened to be in the home of testatrix on that particular day, except she testified that she must have been called by telephone.
On that occasion Mrs. Helvern wrote, and testatrix executed, the will which this action sought to set aside. The only persons present while the will was being written were Mrs. Helvern and testatrix.
That will gave an undivided one-sixth interest in the farm to Jennie Steward, an undivided one-sixth interest to Isabel Steward, a one-third interest to Christina Finch, and a one-third interest to John Gregg. This will also gave the home in Eairview to John Gregg and gave all the personal property to Christina Finch and John Gregg to be divided as they saw fit. Our attention is directed to the following clause:
“Seventh. I make these provisions for my beloved heirs, with no more love, affection or appreciation of one than the other. Nor am I forgetful of my beloved daughter Olive L. Steward, who has preceded me in death, but I am making no provision.herein for her heirs.”
It will be noted that the three grandchildren, plaintiffs in this action, are not beqeathed anything in either will.
We will now refer to the first contention of plaintiffs that the uncontradicted evidence showed that testatrix, at the time of making the alleged will, suffered from an insane delusion that her grandchildren, plaintiffs in this case, were not grown up and were supported by their mother, and was actuated by this delusion in not providing for her grandchildren in her will.
Jennie Steward testified that about 1928 Emily’s mind began to fail. Jennie lived on the farm and would see testatrix two or three times a week or more often. She would have to help testatrix with her affairs at the bank and with her taxes. The testatrix would often forget where she had put things, especially her money, and Jennie would have to come to town and help her find it. Jennie testified that from 1928 until the day of her death Emily had the idea that people were stealing from her, and on this account she kept guns and different implements and other things in her bed. She testified that people were coming to the house in the nighttime and stealing things. As to the grandchildren, Jennie testified that she always liked them until her mind got bad and there were times when she did not recognize them. She testified that during 1928 and 1929, when she was staying with testatrix, Donald would come to the house after her and testatrix would not know him, and when she would say “Oh that is Donald,” testatrix would say “I did not know he was grown up.” Donald was twenty-two years old at that time. On this point a neighbor testified as follows:
“Did she seem to always know her relatives, who they were, her friends? A. Oh, no. I think she always knew me. I always hollered before I got there. I would say, ‘How are you?’ and she would say, ‘Is that you, Ella?’ and I would say, ‘Yes.’ But then any number of times she didn’t know Donald. She would say, ‘Who is that man?’ and when he would come in why she would say, ‘Why, who is that?’ Why it is Donald. ‘Why, he ain’t that big,’ she would say.”
This witness testified that many times Donald would come to see testatrix and she would not know him.
Dorothy Newlin, one of the plaintiffs, testified that many times she went with her brother and sister to see testatrix and testatrix did not recognize them at first. This is all the evidence there is in the record bearing on the question of the delusion upon which plaintiffs depend.
Plaintiffs rely on the holding of this court in the case of Harbison v. Beets, 84 Kan. 11, 113 Pac. 423. In that case this court said:
“It is familiar law that one laboring under an insane delusion which influences him to make a will in a certain way does not possess testamentary capacity. In Medill v. Snyder, 61 Kan. 15, an instruction to the effect that ‘the testator might be capable of transacting the ordinary business affairs of life and sane on other matters, but that if the will was influenced and the direct offspring of an unfounded and insane delusion it could not be sustained’ . . . was approved.” (p. 18.)
That case was one where the testator had an insane idea that all the relatives of one of his daughters were on unfriendly terms with her and that there was danger of her being thrown on her own resources. In that case the court had found that the clause -of the will that was being questioned was written by the testator on account of the insane delusion.
In this case the court made no such finding, nor can we say from this record that the uncontradicted evidence warranted any such a finding. Granting that testatrix quite often did not realize that the grandchildren were grown up, such a belief does not compel a conclusion that had she realized that they were grown up she would have bequeathed them some property. Had she been aware of the true fact that they were grown up it might be argued that this would have been a reason for her not making provision for them in her will.
Plaintiffs next argue that the uncontradicted evidence showed that testatrix did not know the extent of her property or the natural objects of her bounty. Under this head plaintiffs refer to the testimony of many neighbors and friends. The bankers, the doctor, the mayor of the city and many neighbors testified for plaintiffs. They made-out a good case that testatrix was absent-minded; that she had the delusion that somebody was stealing from her, and mental quirks of a similar nature. Had the trial court heard this evidence and made a finding of incompetency it would have been difficult to disturb it on appeal. However, there was evidence offered on the other side. A few of the neighbors, the people who drew the wills, and a doctor who answered a hypothétical question all testified that at the times when they saw testatrix she seemed normal. The text of the two wills themselves is persuasive that she knew what property she had, since the two pieces of real estate, as well as personal property, are mentioned in each will. We cannot say that the fact that testatrix did not leave anything to her grandchildren, the plaintiffs here, is any evidence that she did not know the natural objects of her bounty. It is not inconceivable that she had some reason which to her seemed sufficient for leaving her property as she did. We do know that in both wills she mentioned quite a number of people who were related to her by marriage and she knew the relationship that each bore to her. It was proper for the trial court to consider the provisions of a will in determining the mental capacity of the testator to make it. See Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849. The trial court considered this case and reached a conclusion as to the facts on conflicting testimony. Under such circumstances the result will not be disturbed. See Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580.
Plaintiffs next argue that the uncontradicted evidence showed that undue influence was practiced upon testatrix by Christina and Oscar Finch.
It is difficult to see what evidence in the record is relied upon by plaintiffs to sustain this contention. Mr. and Mrs. Finch come into the case only when they came to Fairview and took testatrix to Hiawa/tha to the office of a lawyer. Much is made of the fact that Mr. Finch made an excuse to take testatrix away when he saw that the will written in the office was not as favorable to himself as he wished. This certainly is not conclusive evidence that he used any influence on testatrix to make the bequests that are contained in the will that this action seeks to set aside. It is true that Mr. Finch came back to the lawyer’s office the next morning and said something to them about going to Fairview to write the will. From this time on, however, neither Mr. nor Mrs. Finch appear in the case. When the will was finally written Mrs. Helvern, the wife of the lawyer to whose office they had gone in Hiawatha, was in the home alone with testatrix and wrote the will for her. As far as this record shows, nothing more happened there than would have happened had any lawyer been called to a home to write a will. Taking into consideration all the facts and circumstances, and drawing the infer ence from them most favorable to the contention of plaintiffs, the most that can be said is that the evidence of plaintiffs raised a suspicion that Mr. and Mrs. Finch exercised undue influence over testatrix. There was evidence the other way, and the trial court found in effect that there had been no undue influence. That ended the matter.
The plaintiffs next argue that the judgment was not supported by any substantial, legally sufficient evidence, and was contrary to the weight of the evidence. What has already been said disposes of that contention.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Smith, J.:
In this action defendant was charged in one count with aiding and abetting in an assault with intent to rob; in the second count with assault with intent to rob by aiding and abetting; in the third count with aiding one who she knew had committed an assault with intent to rob, to escape, by concealing from the officers the name of the person who had committed the robbery. The state dismissed the first count. Defendant was convicted of the second and third. She appeals.
The assault took place in a drugstore in Liberal on June 21, 1934, about 9:45 p. m. A short time before that, defendant and her daughter had been in the Smith drugstore. At the time of the rob bery the daughter had gone out and stood on the street in front of the store. Defendant was visiting with the daughter-in-law of the proprietor near the front of the store when a man afterwards identified as Frank Colby entered. Colby accosted Roy Smith, who worked for his father in the store. He told Smith, “Well, you do just what I tell you and there won’t be anybody hurt.” Acting under directions of Colby, Roy Smith went back to the cash register, got the key to the front door, returned and locked it and turned out the lights in the store. Roy Smith then told his wife and defendant, who were visiting together, that Colby wanted them all to go to the back of the store. They all went back. T. J. Smith, the proprietor, was in the rear of the store when he first saw his son and Colby. Roy Smith told his father that Colby wanted them all to go in back. After the lights in front had all been turned out the only light left burning was the one behind the prescription case, which partially lighted the whole store. When they were all behind the prescription case Colby ordered them all down to the basement. All present, including T. J. Smith, Roy Smith and his wife, a clerk in the store named Locke, the defendant and Colby, went to the basement. They stayed there about five minutes. After they reached the basement there was considerable conversation between Smith and Colby about whether anyone there knew the combination to the vault that was in the basement. Finally Smith convinced Colby that the only person who could unlock the vault was six blocks away and could be reached by telephone. It seemed for a while that Colby was going to tie up everybody there, and take one of them to get the man who could open the vault. This idea was evidently given up, and they went upstairs. As they all went back upstairs T. J. Smith broke away, escaped through a door in the back end of the store and gave the alarm. About the same time Colby broke out a window and escaped.
There was a shooting affray the next evening between Colby and an officer. They were both wounded. Colby managed to get out to the home of some of his relatives in the country near Liberal. He was surrounded there early in the morning of June 23. Rather than give himself up to the officers he put a bullet through his brain.
The evidence against defendant was all circumstantial. Defendant urges, among other things, that she should have been discharged at the close of the evidence of the state because it was not sufficient to prove a case against her. She also urges that the trial court should have granted her a new trial. On account of the nature of the claims argued, the evidence will be examined in detail.
T. J. Smith testified about as has been given here. He testified that while they were all in the basement defendant was within hearing distance of Colby. He also identified Colby as the same man who had kidnaped him a few months before. He also testified that Colby had never been in the basement of the store, and defendant had been;
Roy Smith, in addition to corroborating the evidence given by his father, testified about as has been heretofore set out. He also testified that when he and his wife came into the store, a short time before the attempted robbery, defendant and her daughter, Carrie Duvall, were the only customers in the store; that when they came upstairs out of the basement defendant was in front of him; that he did not see defendant reach for the phone; that other than the fact that Colby wore colored glasses there was no attempted disguise; that Carrie Duvall was in the store when he came, but she left a few seconds afterwards; that immediately after Colby had jumped through the window defendant showed him her hand, which she claimed Colby had struck when she reached for the phone; that it was not bleeding or black and blue, but was a little bit red.
Locke testified that defendant bought a jar of cold cream, and when she went to pay him she said, “It looks like I might have lots of money,” and, “If anybody would tell me to hand over what I have got I would hand it over.” He testified that defendant said that “Mr. Summers (president of the Citizens State Bank and owner of Chas. Summers & Sons store) had instructed his clerks if any holdup should come in there to do whatever they said.” He also testified that on the night in question Colby was dressed in blue-rib overalls with a cap and a pair of dark glasses.
Holland Davis testified that he knew defendant; that he worked on the Eidson ranch in Stevens county in 1929, and Colby worked there at the same time; that he saw Colby at the Eidson ranch again the following spring; that he saw Colby afterwards in April of 1934 on the streets of Liberal, and also at Mrs. Akers’ house, where defendant was staying; that Colby had not changed in appearance from the time he saw him in 1929 and 1930 until the time when he saw him again in'1934; that at the time when he first saw Colby on the streets of Liberal, Colby inquired where defendant lived, and that witness told him, and it was later the same day in the afternoon that he saw Colby out at the Akers house talking to defendant; and that Colby had a scar on the left side of his face extending over across his nose, and that Colby was “kinda hatchet-faced.”
Claude E. Blair testified that he viewed the body of Colby, and that it was the body of the same man whom he saw at the-Eidson sale during June, 1934; that this man was helping around the sale and showed him a truck.
Tom Novinger testified that he lived ten miles north of Plains; that his son had known Colby during his lifetime; that Colby came to his place about seven o’clock on the morning before the holdup; that Colby was driving a dark-green Chevrolet car covered with red mud and bearing an Oklahoma license plate; that the car was equipped with a radio; that Colby played the radio for them; that he saw the same car afterwards in a garage in Liberal; that the mud and license plate were still on it, but there was no radio; that Colby was dressed in blue overalls, wore a gray hat and a blue shirt and was probably five feet ten inches tall and would weigh about 150 pounds, was' tanned more or less, was light complexioned, and was probably thirty-five years old, was of narrow face, and what-you would ordinarily call “hatchet-faced.”
Mrs. Roy Smith corroborated the testimony that has already been described herein. She also testified that defendant looked at Colby and asked her what that man wanted and whether she knew him, and that on the way to the rear of the store she asked, “Well, what do you suppose he wants?” or, “What does this mean?” She testified that as defendant went past the telephone at the side of the prescription case Colby was in front of it; that she did not see 'defendant make any attempt to reach the telephone. She testified further that when the bandit ordered them all back to the rear of the store she looked outside and nodded to the daughter of defendant, so that she would see what was going on and call help.' This witness was then permitted to testify, on cross-examination, that after Colby jumped through the window she told defendant she thought Colby had talked to the daughter of defendant before he came into the store. She then testified that defendant told her that Colby had asked the daughter to buy him some cigarettes.
George Chaffin testified that at the time of the attempted holdup he was running a filling station in Liberal; that a man whom he afterwards learned was Colby came to his filling station on that night; that he was back on the following day and asked him if he knew the station that Mrs. Eidson had leased, and he told him he did not know of it; that he called an officer, who talked to Colby a few minutes; that he knew that defendant did not have any station leased.
C. J. Malone testified that he was an inspector at the port of entry at Liberal; that in a conversation with Colby at a filling station Colby asked him if defendant did not run that station; that he saw Colby at the Bussell cottage camp, and when he attempted to put him under arrest Colby ran, and they exchanged shots; that when he first saw Colby he asked whom he was looking for, and he said, “I want to see Mrs. Eidson.”
E. C. Lepper testified that he was chief of police of Liberal; that on the morning after the attempted holdup he found an abandoned 1934 Chevrolet sedan covered with red-colored mud and with an Oklahoma license tag on it; that the car was not equipped with a radio, but he could tell that it had been. He testified further that he went with the sheriff to interview defendant; that the sheriff asked her if there was anybody around there who could fit Colby’s description, and she said, “No, ... I believe I could identify him”; that he found out that the car belonged to a man in Ponca City, Okla., and was a stolen car; that on the evening of the attempted holdup he was across the street from Smith’s.
L. E. Warden testified that he was the sheriff of Seward county; that he had been acquainted with defendant for seven or eight years and had known Colby since 1929; that defendant gave him a description of the bandit as a man about five feet nine inches tall, slender build, hatchet-faced, wearing a cap and a pair of glasses, overalls, and either a coat or a shirt; that defendant showed him her hand which she said the bandit had hit, and he could see nothing wrong with it; that he asked her if she had any idea who it was, and she said, “No”; that he and other officers searched the cabin in which defendant lived; that they found a car radio; that the one showed him in the courtroom was similar to the one found in the cabin of defendant; that it was in a pasteboard box; that he after-wards arrested defendant on a farm; that at that time he asked her where the radio was, and she informed him that she had taken it to the granary; that he afterwards found the radio in the granary. He testified that he had the numbers of the radio with which the abandoned car had been equipped, and they were the same as the numbers on the radio that was in the courtroom; defendant claimed she had found this radio in the evening of the 21st of June on the way to Liberal. He further testified that there was something peculiar about Colby’s features, in that “he was hatchet-faced, slim-faced, and long, peaked nose”; that on the night of the holdup defendant gave him a description of Colby and it was not a bad description; that when he saw Colby’s body on the night of June 23 he had not changed a bit in his personal appearance since he had first known him in 1929.
When the state had finished the introduction of the above evidence defendant filed a motion to discharge, which counsel refers to as a demurrer to the evidence. The court required the state to elect as between counts 1 and 2. The state elected to stand on count 2. Count 1 was dismissed and the motion to discharge was overruled as to counts 2 and 3.
When defendant took the stand in her own defense her first testimony was a detailed account of her whereabouts during the day of June 21. She testified that she was not in Liberal during that day until just before she went to the drugstore. She testified that she became acquainted with Colby when he worked for her in December, 1928, and January, 1929; that they had six men hired at that time; that she had never seen Colby from that time until she saw him in the mortuary after his death. The balance of the evidence offered by defendant was a denial of the various times when witnesses had said they had seen her talking to Colby or seen Colby at her ranch.
C. B. Nelson testified that he was across the street from the Smith drugstore; that some lady came across the street to Lepper, the chief of police, and she and Lepper went back over to the store; that he followed them over; that they looked in the front window and saw no one, and went around to the middle door on the north side where Doctor Smith, the brother of Smith, the druggist, had his office; that there Lepper talked to Doctor Smith, who told them nothing was going on.
Carrie Duvall testified that while she was standing outside the store she saw Mrs. Roy Smith look at the men and then at her and then nodded; that she knew something was wrong and went across the street to Chief of Police Lepper and told him something was wrong in the drugstore, and described the man she saw, and went with the chief to the side door, where they talked to Doctor Smith and were told that nothing was wrong.
At the close of the evidence offered by defendant the state asked permission to endorse the names of three witnesses on the information for the purpose of rebuttal. Over the objection of defendant, this permission was given. Two of these witnesses contradicted the testimony of defendant as to discrepancies between statements she was said to have made and her testimony. It is to the testimony offered by a third witness that our attention is drawn.
Benton Jones testified that about noon on June 21 he talked to Colby on the streets of Liberal, and that about one o’clock on that day he again saw and spoke to Colby, and at that time Colby was talking to defendant and her daughter. Defendant objected to the admission of this evidence on the ground that it was properly a part of the state’s case in chief. On the hearing of the motion for a new trial the affidavit of a bank cashier from Moscow was presented, wherein the cashier stated that defendant was at the bank in Moscow at the hour when Jones swore he saw her in Liberal talking' to Colby. The affidavit of a truck driver was also offered to the same general effect. The trial court overruled the motion for a new trial. Our question is whether the admission of the rebuttal evidence and denying the motion for a new trial was reversible error.
At best the case against defendant was not a strong one. The state points out that defendant had known Colby in his lifetime; had talked to him during the spring of that year some months before the attempted robbery, and had some property in her possession soon after the robbery which had been in the possession of Colby a short time before. From these facts it is argued that she must have aided and abetted Colby in the robbery of the Smith store. There was no evidence offered as to anything that happened at the scene of the offense which would tend to strengthen the state’s case. In such a case, then, the evidence of Benton Jones was a part of the case in chief of the state. The fact, if it was a fact, that defendant and her daughter were talking to Colby on the streets of Liberal at noon on the day of the robbery would be a much stronger circumstance than any of those relied upon.
It is obvious that this evidence was not offered to rebut anything said by defendant during her defense. The state had made no issue as to her whereabouts and movements during the day of the 21st. Her testimony in that respect was not offered as an alibi. The nature of the offense with which she was charged was not such as could be met with an alibi. The statute requiring names to be endorsed on the information before trial is intended to enable the defendant to guard against surprise at the trial. This court has gone a long way in holding that the trial court has a wide discretion as to permitting additional names to be endorsed on an information after the trial has started. We never have held, however, that such a thing should be permitted when it resulted in prejudice to the rights of defendant. (See State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853.) The same is true of the right of the trial court to reopen a case after it has been closed for the purpose of receiving further evidence. In this case the state asked permission to endorse the name of the witness who testified as to the incident in Liberal at noon on the 21st just before he took the stand. The defendant did not have sufficient opportunity to meet this most damaging and climactic piece of evidence. In a case based altogether on circumstantial evidence such as this, it appears that the use of this evidence when it was introduced was prejudicial to the rights of the defendant. An examination of the affidavits offered on the hearing of the motion for a new trial discloses that the evidence available to defendant to meet the evidence of Jones was of substantial merit. There was a strong liklihood that had the jury heard this evidence a different verdict might have been reached. The situation could not have been met by allowing defendant time to meet this evidence. At the point in the trial which had been reached when this incident occurred, it would not be surprising if defendant could not think offhand how she might meet such evidence. We hold that the trial court abused its discretion in overruling the objection of defendant to the introduction of the evidence of Benton Jones and in denying the motion of defendant for a new trial.
The judgment of the trial court is reversed, with directions to allow defendant a new trial.
Burch, C. J., dissenting.
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The opinion of the court was delivered by
Hopkins, J.:
A husband and wife were divorced and a division of property made in the divorce decree. They afterwards entered into a contract concerning the property and were remarried. After again living together for several years the wife left the husband and sought in the instant action to quiet her title to the real property awarded to her in the original decree of divorce. She was denied the relief prayed for and appeals.
The facts are substantially these. The parties were married December 18, 1898, and divorced May 2, 1919. They were then living in Wakeeney. A few months later they agreed to go together with sons and daughters on a trip, first to Colorado, then to Arizona and finally to California. The trip was made in an automobile owned by one of the sons. The former husband and wife entered into a verbal understanding with respect to resumption of marital relations and a change of the property rights previously made in the divorce decree. At Flagstaff, Ariz., the contract was reduced to writing. The parties were remarried in California on June 19, 1920, and are still husband and wife. In due time the husband filed an action in California seeking a declaratory judgment on the contract entered into between them at Flagstaff, Ariz. The wife, as defendant in the case, first filed a demurrer and then an answer, in both of which she challenged the jurisdiction of the court. Her pleas to the jurisdiction were overruled, the case tried, findings of fact and conclusions of law made and judgment entered ordering that the real property originally awarded to the wife in the Trego county divorce decree be reconveyed to the husband. This judgment was entered April 14, 1923. Later a copy was recorded in Trego county. The husband and wife continued to reside together until 1926, when the wife returned to Wakeeney and filed the present action to quiet her title to the real property in question. (An action for divorce is pending between them in California.) Trial was had to the court which made findings and conclusions as follows:
“That the court is not bound by the findings and decree of the superior court of Kern county, California, of April 4 and 14, 1923, under the full faith and credit clause of the constitution of the United States; that the findings and judgment of said California court are entitled to respectful consideration at the hands of this court as evidence of the rights of the parties to this action. On the whole of the evidence including the proceedings in said California court this court finds the issues in favor of the defendant.
“It is therefore considered and ordered by the court:
“(a) That the plaintiff take nothing by her said action.
“(b) That the defendant Samuel R. Smith have and recover of and from the plaintiff Rosa B. Smith judgment revesting in him title to the property in controversy, to wit: lots thirty-two (32), thirty-three (33) and thirty-four (34) in block eight (8) in the city of Wakeeney, in Trego county, Kansas, free and clear of any and all claims of the plaintiff except her inchoate marital rights as the wife of the defendant; and that this decree stand as the necessary conveyance to accomplish said purpose.”
The plaintiff appealed, contending that she signed the contract at Flagstaff under duress and threats; that it was never her intention to revest the title to the Wakeeney real estate in her husband, and that the California court had no jurisdiction of the title of land in Kansas, and that therefore the decree of the California court was of no effect.
It may be noted that the district court oí Trego county does not state whether the judgment in favor of the defendant is based upon the contract executed at Flagstaff between the parties, or the decree of the California court. It may be noted, also, that the contract was not artistically drawn, indicating, perhaps, that a written memorandum prepared by the parties themselves without counsel might have been used. It was indefinite in parts and subject to different interpretations, and oral evidence was received by the court as to what the agreement between the parties actually was. Also, there were certain admissions by the wife in her pleadings in the California case which were inconsistent with the terms of the contract as set up in her reply in the instant case. We deem it neither necessary nor profitable to set out these things in detail. They were all before the trial court — we think not improperly — and had that court's careful consideration. On the whole we are of the opinion that there was adequate evidence to sustain the finding that the plaintiff (the wife) entered into the agreement to revest the defendant (the husband) with the property and that she did so of her own will and accord and without duress, and the agreement was sufficient basis to sustain the judgment, so that the question of whether or not the California court had jurisdiction to enter its decree need not be passed upon.
The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action for divorce, alimony, custody of and support for minor child, and attorney fees.
Plaintiff, the wife, prevailed in all respects except as to decree of divorce. Plaintiff appeals from the order denying her a decree of divorce. Defendant cross-appeals from the order granting plaintiff alimony. He insists plaintiff is not entitled to a decree of divorce and therefore judgment for alimony must be reversed.
The ground alleged for divorce was extreme cruelty. The trial court found defendant guilty of extreme cruelty as alleged in the petition, but declined to render judgment for divorce. The theory upon which the trial court withheld a decree of divorce is disclosed by the following finding of fact:
“The defendant is an officer in the United States army, and for more than one year prior to the commencement of this action was stationed at Fort Riley, Kansas, pursuant to military orders; and the plaintiff accompanied him there and had been there with him for more than one year prior to the commencement of this action. At no other time or place had the plaintiff or the defendant ever resided in the state of Kansas. And the defendant was at Fort Riley solely in compliance with his orders as an officer in the United States army.”
The trial court concluded as a matter of law neither of the parties to this action were at any time domiciled on the Fort Riley Military Reservation or elsewhere in the state of Kansas, and hence the court lacked jurisdiction to grant a divorce.
In the view we take of this lawsuit, it is unnecessary to determine the correctness of defendant’s contention that permanent alimony may not be awarded when a divorce is refused. In the event a divorce should have been decreed, it follows some substantial provision for the wife was not only proper but imperative. (Savage v. Savage, 141 Kan. 851, 44 P. 2d 272; Holder v. Holder, 143 Kan. 79, 53 P. 2d 806.)
R. S. 1933 Supp. 60-1502, under which this action was brought, reads:
“The plaintiff in an action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed, unless the action is brought in the county where the defendant resides or may be summoned: Provided, That any person who has been a resident of any United States army post) or military reservation within the state of Kansas for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation.”
Everything preceding the proviso in the. above law constituted the old statute. The proviso was added by amendment in 1933. The parties had resided on the Fort Riley military reservation for more than one year prior to the commencement of this action. Geary county, in which the action was brought, adjoins the reservation.
Did the district court of Geary county have jurisdiction to enter a decree of divorce? Defendant contends it did not. He insists the term “resident,” in the proviso means “actual resident,” as used in the old part of the statute. He urges the district court had no jurisdiction to grant a divorce unless plaintiff had acquired such “actual residence” or “domicile” on the reservation as is contemplated in any case wherein a person sues for divorce who has resided in the state but outside the reservation. For a definition of the word “resident,” as contemplated by the divorce statute of this state, defendant relies on the early case of Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122, in which it was held:
“. . . plaintiff was at the time of the commencement of this action ‘a resident' or ‘an actual resident’ of Neosho county, Kansas, within the meaning of sections 54 and 640 of the civil code; that these sections contemplate the actual and permanent residence of a party, and not merely the temporary and official residence which a party may adopt during the time of his holding a federal office.” (Syl. ¶ 1.)
Defendant earnestly contends the instant case is also governed by the decision of this court in the case of Pendleton v. Pendleton, 109 Kan. 600, 201 Pac. 62. We are reminded the residence of plaintiff in that case is identically the same as .that of plaintiff in the instant case. It was there said:
“. . . residence of the wife of a captain of the United States army at Fort Riley, to which military post he was assigned for duty, was not domicili ary, within the meaning of the divorce statute, which requires domicile of the plaintiff in the state and in the county in which the petition is filed.” (Syl.)
These decisions were, of course, rendered prior to the 1933 amendment. Is it to be contended the legislature was without power to determine who was entitled to use its courts, for what purpose and under what conditions? Federal courts have no jurisdiction over divorce. The states have full and absolute power to regulate and dissolve the marriage status by appropriate legislation not in contravention of public policy. The procedure for obtaining a divorce varies in the respective states of the union. Amendments are enacted from time to time to meet the changing thought and deepening conviction of communities concerning conditions which in their judgment require relief. All legislation is presumed to be prompted by a specific purpose and intended to accomplish a definite result. It must be assumed the legislature in this instance did not intend a futile. thing. It must be assumed the legislature had in mind some specific remedy, some definite relief, when it enacted this amendment. What was that purpose? Can the intent be ascertained? If so, it is the duty of courts to make it effective if possible to do so.
In the first place it must be assumed the legislature knew a population of approximately 8,000 people resided on the two military reservations within this state. It must be further assumed the legislature fully realized the military personnel on these reservations was subject to constant change by military orders. It knew from the very nature of the service that persons residing there could not establish an actual permanent residence or domicile on a reservation. This conclusion is irresistible. It is folly to say that persons subject-to military orders intended to remain on a military post beyond the term of assignment to that post. It must also be assumed the legislature thoroughly understood there were no federal laws governing the subject of divorce for persons residing on these reservations, irrespective of whether they resided thereon a single day or for a lifetime. Furthermore, it is reasonable to assume the legislature was thoroughly apprised of the full import of the decision in the Pendleton case. That decision simply meant that persons bom and whose forebears were born on federal military reservations and who remained in military service in all probability would never acquire a domicile or actual residence of their own. It might be contended with some merit every person has a domicile somewhere and that' the domicile was that of his ancestors prior to entrance into military service. It will be readily observed such domicile, in all probability, would be highly impracticable for all parties concerned. On the other hand, the problem of the establishment of such domicile is surrounded by almost insurmountable difficulties. The result, for all practical purposes, is that many persons on military reservations are outside the law relative to actions for divorce. If divorce is to be permitted — and it is — what valid reason can be assigned for discrimination? And such is the effect, against some eight thousand people engaged in the service of their country. We are persuaded it was the intent and purpose of the amendment to remedy that precise condition.
Does the amendment itself aid in disclosing the intent ascribed to it? We think it does. The old portion of the statute which applies to others than those residing on military reservations requires “actual residence in good faith in the state for one year, . . .” Concerning the words “actual resident in good faith,” this court, in the Pendleton case, said:
"Because the marital relation is one of profound interest to the state, and because the marital status virtually constitutes a res for purposes of jurisdiction over divorce, the legislature intensified, the character of residence necessary to maintain an action for divorce by use of the term ‘actual.’ The purpose evidently was to indicate that permanency which the word ‘domicile’ denotes, and the court has already held that the divorce statute contemplates domicile of the plaintiff in the state for a year preceding the filing of the petition, and domicile in the county in which the petition is filed. (Carpenter v. Carpenter, 30 Kan. 712, 717, 2 Pac. 122.)” (p. 602.) (Italics inserted.)
It will be observed the words “actual” and “good faith” are entirely eliminated in the amended portion of the new law which applies only to residents on military reservations. That omission cannot be lightly regarded. It is most significant. It eliminates the express language on which the opinion in the Pendleton case rested. To the same extent the intensifying words were emphasized under the old law in the Pendleton case, we are obliged to emphasize the significance of their omission from the amendment in the instant case. It would, therefore, appear the purpose of the amendment was to cure the unsatisfactory status of these residents so clearly revealed by the decision in the Pendleton case. If that was not the intent and purpose then the amendment was a useless gesture.
In determining the intent of the legislature the court is not limited to a mere consideration of the words employed but should look to the existing conditions, the causes which impelled the enactment, and to the objects sought to be attained. (City of Emporia v. Norton, 16 Kan. 236; State v. Kelly, 71 Kan. 811, 820, 81 Pac. 450; Coney v. City of Topeka, 96 Kan. 46, 149 Pac. 689; Van Doren v. Etchen, 112 Kan. 380, 211 Pac. 144; State, ex rel., v. Davis, 114 Kan. 270, 217 Pac. 905; Sedgwick County Comm’rs v. Toland, 121 Kan. 109, 245 Pac. 1019.) Applying the established rule of construction we are compelled to hold the intended meaning of the word “resident,” insofar as the amendment only is concerned, was residence for the period of employment on the reservation (which, in order to obtain a divorce, could not be less than one year), and not “actual residence” or “domicile” which signifies permanence. Such construction conforms to what clearly appears to have been the legislative intent. Any other construction renders the amendment meaningless.
Defendant next contends if this construction be adopted then the amendment, constitutes invalid special legislation and is unconstitutional as repugnant to section 17 of article 2 of the state constitution, which provides:
“All laws of a general nature shall have a uniform operation throughout tlw state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to’ this provision of the constitution shall be construed and determined by the courts of the state.”
The specific complaint of defendant is unless actual residence or domicile on the reservation is required, the amendment discriminates between persons residing on the reservation and those residing off the reservation within the state. It is insisted that is invalid special legislation. The contention is not sound. In the first place the amendment is not special legislation. Second, it is valid general legislation. The amendment applies to all within the state similarly situated. Its application is therefore general to the entire class it embraces. It is not a false or deficient classification, but a genuine, natural, reasonable and complete classification. It rests upon a substantial basis. It operates uniformly on all members of the class. It is neither arbitrary nor capricious. In discussing the question of special legislation this court, in State v. Butler County, 77 Kan. 527, 94 Pac. 1004, said:
“If, however, it operates uniformly on all the members of the class to which it applies it is not open to the objection, provided the classification adopted by the legislature is not an arbitrary or capricious one. The legislature has the power to enact laws of a general nature which will be applicable only to a certain portion of the state or to a certain class of citizens.” (p. 533.)
In the case of Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915, it was held:
“An act, to have a uniform operation throughout the state, need not affect every individual, every class, or every community alike. It is competent for the legislature to classify and adapt a law general -in its nature to a class, but such classification must be a natural and not an arbitrary or fictitious one, and the operation of such general law must be as general throughout the state as are the genera therein provided for.” (Syl. ¶ 5.)
See, also, Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016; State, ex rel., v. Kansas City, 125 Kan. 88, 262 Pac. 1032; State, ex rel., v. French, 130 Kan. 464, 286 Pac. 204; 25 R. C. L. 815-818.
Defendant urges the state of Kansas has no authority to legislate concerning the subject of divorce on the reservation. In 1889 the state, except as to certain reserved subjects, ceded exclusive jurisdiction to the United States over and within all the territory known as the Fort Riley military reservation. (Laws 1889, ch. 150, sec. 1.) In the cession no specific reservation was made concerning the subject of divorce. It is urged, therefore, the state has completely surrendered its jurisdiction over the subject. In support of that view our attention is directed to a Maryland and a Georgia decision. (Lowe v. Lowe, 150 Md. 592, 133 Atl. 729, 46 A. L. R. 983; Dicks v. Dicks, 177 Ga. 379, 170 S. E. 245.) Insofar as the residence features of these cases are concerned, they are not helpful here. They turn on the subject of actual residence and domicile on the respective reservations. As heretofore indicated the amended portion of our divorce law was not intended to require actual residence or domicile on the reservation.
Does our divorce law, including the amendment, constitute an unlawful encroachment on federal jurisdiction? We think it does not. It neither violates nor infringes upon any existing act of congress. In Barber v. Barber, 62 U. S. (21 How.) 582, 61 L. Ed. 226, the supreme court declared:
“This court disclaims altogether any jurisdiction in the courts of the United States upon the subject of divorce or for the allowance of alimony, either as an original proceeding in chancery, or as an incident to a divorce a vinculo, or to one from bed and board.”
The amendment in the instant case simply opens convenient courts of this state to those residing on reservations within the state. In other words, it provides a forum for the adjudication of domestic difficulties. Inhabitants of the reservation are not obliged to invoke its jurisdiction. It is not mandatory they do so. That congress has power to legislate on the subject is not questioned. That it has not seen fit to do so is admitted. Approximately a half century has passed since the cession of this territory which now embraces a population of approximately 8,000 people. During this long period no federal provision has been made for the settlement of the domestic problems of these people. At least until state laws are superseded by appropriate federal legislation, the validity of existing legislation should be sustained. As heretofore stated, the Georgia case finally turned, not on the question of federal jurisdiction, but on the question of domicile. The Georgia case is not authority for defendant’s contention on the subject of federal jurisdiction. In fact, it would appear the Georgia court favored the dissenting opinion in the Maryland case. That is, it favored upholding state legislation until congress elected to exercise its jurisdiction. In an analysis of that subject, the Georgia decision quotes with apparent approval from the dissenting opinion of the Chief Justice in the Maryland case, as follows:
“In no case that I have found has an inhabitant on a federal reservation been denied the private laws and remedies of the state court, where congress has furnished him no other.” (p. 386.)
The chief justice in the Maryland case further said:
“Where they have been allowed, a basis for the allowance has been found in the principle of public law that, upon the transfer of territory from one government to another, the laws of the first government are continued in force, until superseded by laws of the second. This qualification on the transfer of jurisdiction seems to be recognized in all cases; and it is merely a rule of necessity. United States v. Percheman, 7 Pet. 51, 87 (8 L. Ed. 601, 617); Halleck, International Law, ch. 34, sec. 14.” (p. 606.)
Although jurisdiction over this reservation was ceded to the United States, congress was not obliged to exercise it. Until existing laws are abrogated by the new sovereign they remain in full force and unimpaired. (People v. Lent, 2 Wheel. Cr. Cas. [N. Y.] 548; Ft. L. Rld. Co. v. Lowe, Sheriff, 27 Kan. 749; Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 58 Ct. 995; C. R. I. & P. Rly. Co. v. McGlinn, 28 Kan. 274; Chicago Pacific Railway Co. v. McGlinn, 114 U. S. 542, 5 S. Ct. 1005; Hoffman v. Power Co., 91 Kan. 450, 138 Pac. 632; 15 R. C. L. 113.
Divorce laws were in force over the territory occupied by the Fort Riley reservation prior to its cession to the United States. The statute at that time provided for divorce on the ground of extreme cruelty, the ground relied upon in the instant case. The law also provided for alimony. The amendment made no change in the substantive law of divorce. It merely made possible the use of convenient courts for the enforcement of prior existing law. We therefore hold the trial court had jurisdiction to decree a divorce and to award alimony. Since the trial court found defendant had been guilty of extreme cruelty toward plaintiff, as alleged in her petition,' the trial court is directed to enter a decree of divorce in favor of plaintiff, and pursuant to such decree is further directed to render a new judgment for alimony in accordance with the terms and provisions of the former award. It is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
This is an action in forcible detention commenced before the city court of Wichita where judgment was rendered in favor of the plaintiff, from which the defendant appealed to the district court where judgment was again rendered in favor of the plaintiff, and the defendant appeals to this court.
The abstract shows that the plaintiff, on May 2, 1928, commenced an action in the city court of Wichita in forcible entry and detention for the recovery of the possession of certain real property in that city; that the action was tried before a jury, a verdict was rendered in favor of the plaintiff, and judgment was rendered in his favor on May 10, 1928; that on the next day, May 11, 1928, that judgment, on the application of the plaintiff, was set aside because of defective notice; that on May 10, 1928, the plaintiff served a notice on the defendant to vacate the premises or an action would be commenced for the possession of the same; that on May 15,1928, the present action was commenced with the result as above indicated; and that no appeal was taken from the order vacating the first judgment.
The defendant contends that the plaintiff had no right to commence a second action in forcible detention for the recovery of the property and that the judge of the city court had no authority to vacate the judgment that had been rendered against the defendant. The defendant in his abstract says:
“Evidence was introduced in behalf of both parties but such evidence concerned the lease between the parties, and as appellant does not care to raise an issue as to the validity of such lease, such evidence is omitted from this abstract.”
The abstract does not show that the judgment rendered on May 10, 1928, was called to the attention of the trial court in any way whatever. What has been quoted from the abstract indicates that it was not called to the attention of that court. If the defendant intended to rely on that judgment he should have called the attention of the trial court to it. The failure of the defendant to show by his abstract that the attention of the trial court was called to that matter prevents this court from reversing the judgment on that ground. Even if the attention of that court was called to the first judgment, the defendant does not show wherein he was prejudiced by the order setting aside the first judgment or by the commencement of the second action. It may have been error for the city court to vacate that judgment, but the judgment rendered against him in the district court must stand unless the defendant shows that some substantial right of his was prejudicially affected thereby. (R. S. 60-3317.) No such result has been shown. Three trials have resulted against him. He seems to be holding the property wrongfully.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to set aside a will on the ground of the lack of testamentary capacity of the testatrix and because of undue influence. The action was tried to the court with the aid of a jury. At the close of the evidence the court took from the jury the question of undue influence and submitted only the question of the lack of testamentary capacity. On that issue the jury found for plaintiff. The trial court approved that finding and set aside the will. The defendants have appealed.
The only question argued in this co.urt is the sufficiency of the evidence to sustain the verdict and judgment. It is argued that the facts are quite similar to those set out in Barnhill v. Miller, 114 Kan. 73, 217 Pac. 274, and under the rules there stated the evidence is insufficient. It is further argued that at most the evidence on behalf of plaintiff tended to show that the testatrix was suffering with senile dementia, and under the authority of Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, the evidence was insufficient. These points presented by appellant are not well taken. In fact, there was nothing said in the court below about senile dementia, although some of the evidence tended to support the view that the condition of the testatrix might be so denominated. We do not regard it as necessary to set out the evidence in detail. We deem it sufficient to say that there is evidence that for some months prior to the making of the will, and up to the time it was made and afterwards, the mental condition of the testatrix was such that'she was unable to recognize some of her near relatives and friends whom she had known for years, to remember where they lived or what their business was, or to know her own property or what she had done or was being done with it. Many witnesses testified to specific facts or circumstances tending to show lack of mental capacity of the testatrix in these two respects. It is true there was some conflicting evidence on these points. In so far as the evidence conflicted it was the province of . the trial court, with the aid of the jury, to weigh that evidence. There is an abundance of evidence of the character above mentioned to support the verdict and judgment of the court below, and that is as far as we can inquire into the matter.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This suit involves features of the bulk-sales law. On November 12,1924, Ben F. Albright executed a note to the Palmer Bank for $2,800. Several payments had been made upon it which reduced it considerably. Albright owned a stock of goods at Palmer and also one at Clyde. He sold the Clyde stock in bulk to W. Y. Griffitts April 1, 1925, for $2,645 without compliance with the bulk-sales law. Within two weeks the bank notified Griffitts that Albright owed the bank and that it was looking to the stock for payment of the debt. About four weeks later an officer of the bank went to the store and personally called the attention of Griffitts to the indebtedness. On June 19,1925, Griffitts sold the stock to Edith Haley in bulk, in which there was no compliance with the bulk-sales law. The bank on June 27,1925, sent a letter to Mrs. Haley stating that the bank had a debt owing to it by Albright and was looking to the stock for payment of it. Afterwards the bank tried to obtain payment of the debt from Albright, who had moved to another section of the state, and not being successful in collecting it from him the bank on June 30, 1927, brought this action against Albright for the balance due, $1,175.51 with interest thereon, made Albright, Griffitts and Haley parties, and it asked that the stock of goods in the possession of Haley be sold to satisfy the claim of the bank. A judgment was rendered against Albright for $1,267.61 on April 12, 1928, and it was further adjudged that if the obligation was not paid within ten days that an order of sale issue and sufficient of the stock and fixtures be sold to satisfy the judgment, and that if the sale was made or the judgment satisfied by Haley, that she might recover judgment against Griffitts and Albright, and further that Griffitts might have judgment against Albright for any sum paid by him. Albright made no defense, but the defendants, Griffitts and Haley, appeal from the judgment as against them.
It is contended that the action was barred by statutes of limitation as against Griffitts and Haley, since it was not brought within two years after the illegal sale was made of which plaintiff had actual knowledge. The action was brought more than two years and less than three years after the sale was made. It is argued that it was barred first, in that it was in its nature the recovery of a forfeiture or penalty, which must be brought within one year under the fourth subdivision of the statute limiting the time of bringing action (R. S. 60-306); second, that if not within that provision it was one for relief on the ground of fraud or for taking and detaining personal property which must be brought within two years after the action accrues within the third subdivision of the statute. The action cannot be regarded as one for a forfeiture or penalty or for the taking and detention of personal property, nor do we think it to be one for relief on the ground of fraud.
A bulk sale is not necessarily fraudulent or even necessarily void. If there are no creditors of the seller he may transfer the property freely without regard to the act. A bulk sale is not invalid if a duly verified list of creditors is furnished the purchaser and notice is given to creditors within seven days before taking possession of the property or paying for same. Besides, the giving of notices even may be dispensed with by the execution of a specified bond. (R. S. 58-102.) As between the seller and the purchaser the transfer was valid without compliance with the bulk-sales act, which was enacted for the protection of creditors. (Harpham Brothers Co. v. Perry, 118 Kan. 457, 235 Pac. 1039.) Even as to creditors a bulk sale is not absolutely fraudulent and void. It is only void where the statutory requirements are not observed. (27 C. J. 884.) A bulk transfer of property which is exempt is not a fraud as against creditors because they have no right to look to exempt property for the payment of debts and are not concerned with the disposition which the owner may make of it. (Saunders v. Graff, 103 Kan. 261, 173 Pac. 413.) A sale in bulk is at most only voidable and is only void as to creditors where there is noncompliance with the requirements of the act. Where the purchaser conforms to these requirements he is not accountable to creditors. We think the remedy provided cannot properly be regarded as one for relief on the ground of fraud, but does fall logically within the limitation applicable to an action upon a liability created by statute, which may be brought within three years after the cause of action accrues. It is a distinct and new kind of liability which did not exist until it was created by the act. The means of escaping the liability are prescribed by the statute. As the right given to creditors rests alone upon the statute and is to be measured by its terms, the three-year statute of limitation applies. In Harpham Brothers Co. v. Perry, supra, it was said that the right was based on the statute.
The contention that the plaintiff is estopped to maintain the action by reason of the delay in instituting the action, is without merit. (Coleman, Trustee, v. Costello, 115 Kan. 463, 223 Pac. 289; 27 C. J. 891.)
An objection to a ruling excluding offered testimony is not available since it was not produced on a motion for a new trial, and no error is seen in rulings admitting testimony.
We find no error in the record and hence the judgment will be affirmed. It is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
This action is one to recover the value of wheat deposited with the defendant for the plaintiff by growers of wheat, members of the plaintiff association, under the terms of a written contract. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The contract provided that—
"In consideration of the mutual obligation of the respective parties hereto, and as an aid in carrying on the undertaking on the part of the association to provide an efficient cooperative marketing system for wheat as set forth in existing contract and agreements between the association and its individual members . . .
“The association shall use the facilities of the company located at Luray, Kansas, in making the delivery of wheat of. its members to the association . . .
“The company agrees to separate, and to keep separate from all other grain, the wheat delivered to it by the association members for shipment to the association, except in such cases and at such times as limited local storage facilities forbid, and in such cases the company agrees to ship to the order of the association and at the order of the association an equivalent amount of wheat of equal grade, quality and value . . .
“The company agrees to deliver to the association in full all wheat delivered to the said company by the members of the association . . .
“It is further agreed that any damage or deterioration of wheat while in control of the company shall constitute a direct liability on the part of the company, unless it shall prove that such damage or deterioration is the result of causes beyond its control and no way due to its neglect or carelessness . . .
“It is mutually agreed that the company shall charge and the association shall pay for the weighing, grading, handling and shipping of all wheat delivered to the company by the members of the association and for the accounting as herein agreed. . . .”
We quote from the brief of the plaintiff as follows:
“Under a contract dated June 14, 1924, between the Farmers Elevator Company, of Luray, Kansas, and the Kansas Wheat Growers Association the former received from the members of the' latter 31,917 bushels, 40 pounds of wheat ...
“The Fanners Elevator Company delivered to the association 28,209 bushels and 10 pounds of this wheat, leaving a balance on hand, after allowing for one-half of one per centum or 159 bushels and 20 pounds for shrinkage, 3,549 bushels, 10 pounds.”
Four demands were made by the plaintiff on the defendant for the delivery of the wheat which had not been delivered, one on June 8,1925, one on June 15, another on June 25, and the last on July 15, 1925. No effort was made to respond to the demands made on June 8, June 15, or June 25, 1925. On July 17, 1925, defendant began loading a car of the wheat to be delivered to the plaintiff. In the early morning of July 18, 1925, the elevator was burned, together with the car in which part of the wheat had been loaded, and all of the wheat was destroyed. On June 8, 1925, when the first demand was made, the wheat was worth $1.68% a bushel.
1. The plaintiff argues that “the 'court should have instructed the jury to return a verdict for the plaintiff.” Such an instruction was requested, but the court failed to give it. The petition set out two causes of action, one to recover the value of the wheat for failure ■to deliver it under the contract, and another to recover the value of the wheat on account of its conversion by the defendant. At the conclusion of the evidence the plaintiff requested an instruction to the jury that a verdict be returned by the jury in favor of the plaintiff.
In Elevator Co. v. Harris, 6 Kan. App. 89, that court said:
“A bailee for hire who receives a consignment of grain upon a promise, express or implied, to redeliver the same, or other grain of the same kind and quality, to the consignor upon demand, and fails to do so within a reasonable time after demand, is liable for the value of the grain withheld at the time it should have been delivered, although such bailee continuously avows his intention to comply with the demand but fails to do so.” (Syl. ¶ 2.)
In U. P. Rly. Co. v. Moyer, 40 Kan. 184, 19 Pac. 639, this court declared that—
“Where goods are shipped over a railroad, and are permitted by the owner to remain at the depot of their destination until the railroad company becomes liable therefor only as warehousemen, and afterward such goods are demanded by the owner, and he is informed by the agent in charge of such depot that the goods have not yet arrived, and afterward the depot, together with the goods, is burned, held, that the failure to deliver the goods on demand of the owner is such negligence as will render the company liable for the value of the goods.” (Syl. ¶ 1.)
See, also, Henry v. Railway Co., 83 Kan. 104, 112, 109 Pac. 1005; 6 C. J. 1151; 38 Cyc. 2031; 3 R. C. L. 114.
The defendant was liable to the plaintiff for the value of the wheat. The instruction requested should have been given.
2. The defendant argues that—
“The plaintiff waived any alleged breach of contract because of delay by defendant under the earlier demands, by making a new demand on July 15, 1925, followed by acts done and expenses incurred by defendant in compliance with such demand.”
We quote from Street Lighting Co. v. City of Wichita, 101 Kan. 452, as follows:
“A waiver of a contract right implies a voluntary and intentional renunciation of it, and some positive act or positive inaction inconsistent with the contract right is necessary to create a waiver.” (Syl. ¶[ 1.)
See, also, Eikelberger v. Insurance Co., 105 Kan. 675, 681, 189 Pac. 139; Harpham Brothers Co. v. Perry, 118 Kan. 457, 461, 235 Pac. 1039; 27 R. C. L. 908.
This court is unable to see wherein there was any intention to waive any right of the plaintiff by repeating its demands for the delivery of the wheat. The plaintiff was insisting at all times on the delivery of the wheat. The subsequent demands did not waive any right that the plaintiff had to the wheat or to recover its value.
3. Another matter argued by the defendant is that—
"The contract between plaintiff and defendant did not contemplate storage of grain and provided no compensation for storage and hence defendant was not a warehouseman.”
That is not a correct interpretation of the contract. It specifically provided for weighing, grading, handling, and shipping the wheat. Defendant was operating an elevator. Wheat would not come into the elevator in carload lots so that it' could be shipped, out immediately. It would come in by wagon and truck, each containing much less than a carload. It was necessary to store the wheat until a carload could be secured.
4. The defendant urges that “mere negligence or nonfeasance cannot constitute conversion.” In response to this contention it may be said that when a bailee under obligation to deliver the thing bailed to the bailor refuses to deliver the bailment on demand, the bailee is liable for the conversion of the property. (See authorities above cited.)
Other matters are urged by the plaintiff. They do not require discussion because judgment should be ordered for the plaintiff.
The judgment is reversed, and the trial court is directed to enter judgment in favor of the plaintiff for $5,980.35.
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The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is whether an unincor porated association has capacity to take a bequest, either in its own right or as beneficiary of a* charitable trust.
Although issues were joined, at the trial the facts were agreed upon and dictated into the record, and so far as here necessary are stated. The last will of Sarah M. Simmons was admitted to probate August 22, 1932. Under its terms she made some specific bequests, which are not here involved. The residuary clause of the will recited:
“Item 5. All the rest and remainder of my estate after the same has been converted into money by my executor hereinafter named, I give, devise and bequeath to the Old Order Church, known as the Eight Mile Church, in Franklin county, Kansas, to be invested and reinvested among the members of said church, and the income derived therefrom to be used for the benefit of said church.”
The Old Order Church, known as Eight Mile Church in Franklin county, Kansas, since 1884 has been an unincorporated religious society, its more correct name being The Old German Baptist Church of Eight Mile district. In 1891 it took title to a tract of land in the neighborhood known as Eight Mile district, under the first name. A church building was erected and church services have since been held there. The membership varied from time to time by reason of death, withdrawals or reception of new members, but was ascertainable as of a given date. Many years ago Mrs. Simmons joined the church by bringing her letter from another church of the same denomination. After the death of Mrs. Simmons, at a meeting of Old Order Church, a resolution was adopted that said church incorporate, and under that authority an application was made and a charter was granted to The Old German Baptist Church of Eight Mile district. Thereafter plaintiffs, as heirs at law of Mrs. Simmons, brought this action against the executor, the church as it was designated in the residuary clause of the will, the incorporated church, and certain heirs who had not joined as plaintiffs, as defendants, setting up the contentions of the parties and asking for construction of the will, and a finding and determination of the rights of all parties under the will.
The case was submitted on the agreed statement, and on July 30, 1935, the trial court rendered its decision in favor of defendants and directed that on final settlement of the estate the executor turn over and pay to the corporation, The Old German Baptist Church of Eight Mile district in Franklin county, Kansas, all funds to be dis tributed under the residuary clause of the will. The plaintiffs have appealed, contending that the Old Order Church, known as the Eight Mile church, being an unincorporated association, had no capacity to take the bequest, either in its own right or as trustee. Appellees contend the bequest was in the nature of a charitable use, that the church association could take, or if not, a charitable trust was created which 'should not be permitted to fail for want of a competent trustee.
Before entering upon a discussion of the main question presented, we note appellants’ contention that if a trust was created, it was a trust to hold the fund and invest and reinvest it among the church members for their benefit. We are satisfied this claim cannot be sustained. Assuming a trust was created, the beneficiary was the church, the statement with respect to investment and reinvestment among the members of the church was only a direction to the trustee. The testator might have directed the fund be invested in United States bonds or other designated securities. Her direction that it be loaned to members of the church did not constitute them beneficiaries, but limited the investments of the fund.
Although there is some difficulty in defining all that may be included in a charitable use or a charitable trust, there is no doubt in the case at bar the testatrix intended a benefit to the designated church, and that a gift was given or a trust created for religious purposes and such as would be classified legally as a charity or a charitable trust. (11 C. J. 320, Charities § 24; 5 R. C. L. 325 et seq., Charities § 48 et seq.; Restatement, Trusts § 368 and § 371.)
In determining whether the bequest in the residuary clause of the will is valid, it appears the question hinges on the capacity of an unincorporated association to take for a charitable use, either directly as a legatee, or as a beneficiary under a trust. The specific question does not seem to have been considered heretofore by this court. In Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36 (on rehearing, 89 Kan. 4, 130 Pac. 691), a residuary bequest and devise to a local camp of Modern- Woodmen was held invalid, on the ground that under the statute pertaining to fraternal orders it had no power to take, it being also held there was no trust for charitable purposes. Whether the local camp was a corporation or not does not affirmatively appear. Compare Clark v. Watkins, 130 Kan. 549, 287 Pac. 244, where a gift to a Masonic lodge for charitable uses was upheld.. Whether the lodge was incorporated does not appear and was not considered.
In Lehnherr v. Feldman, 110 Kan. 115, 202 Pac. 624, the testator by residuary clause left property to Kansas State Soldiers’ Home at Dodge City, which was not a corporation, but was created by and existed at the pleasure of the state legislature. It was contended the beneficiary could not take, and the gift was not for charity.. Owing to differences in the character of the beneficiary, we shall not go further into the facts, but in that case it was said:
“It is the settled rule that courts will look with favor upon all attempted charitable donations, and will endeavor to carry them into effect, if it can be done consistently with the rules of law.” (p. 117.)
“When once a devise or grant is determined to constitute a charitable trust, courts look with liberality on the instrument creating it for the purpose of carrying out the intention of the donor. Technical rules of construction, which have often prevented conveyances or bequests from taking effect, are disregarded. Moreover, when it is ascertained that the donor intended to create a public charity it will not be allowed to fail because the trustee is indefinite or uncertain or incapable of taking. The contention here that the trust must fail because of the uncertainty of the trustee, overlooks the maxim that equity will never allow a trust to fail because of the want of a trustee. And for any misuse or attempted misapplication of the proceeds, the courts afford an ample remedy.” (p. 121.)
It may be conceded that there are many authorities holding that unincorporated associations generally are incapable of taking or holding property either directly for charitable purposes or for the purpose of administering a charitable trust. (See 23 R. C. L. 443; 5 C. J. 1343; 11 C. J. 337.) But there are also authorities to the contrary, the trend being toward more liberal holdings with respect to such capacity.
In 1 Schouler on Wills, 6th ed. § 46, it is said:
“Unincorporated associations are becoming more and more important in recent years as the practice of carrying on business in the form of a trust or unincorporated association is becoming more prevalent. It has been recently held that such associations can be put into bankruptcy, and also there are various recent decisions in line with modern thought to the effect that they may be the recipients of testamentary favors.”
In 1 Bogert on Trusts is the following:
“It sometimes happens that a settlor names as trustee a legal entity which lacks the capacity to receive any property interest or the particular property interest which the settlor has attempted to transfer in that case. The trustee named cannot be said to be nonexistent. It merely lacks the capacity for taking the property interest which every trustee must, by very definition, hold for another. Examples of this are found in the cases where the trustee named is an unincorporated association and by the law of the jurisdiction is not regarded as capable of taking title, or is a foreign corporation forbidden by statute to take as trustee, or is a corporation named in a will as trustee where the witnesses of the will are stockholders of the donee corporation and therefore the gift to the corporation is void. Here the theory of the courts has been that the trust came into being despite the lack of a trustee able to take title, and that the grantor or successors of the testator would be treated as trustees of an express trust for the named beneficiaries until the court could appoint a new trustee. The courts have recognized the gift of the equitable interest as distinct and valid, notwithstanding the failure of the transfer of the legal interest.
“While the older attitude toward the capacity of unincorporated associations was that they were totally incompetent to take a property interest and hence attempted transfers to them were void, the modern tendency is to give force to the attempted conveyance to the association on one theory or another. Some courts seem to admit the capacity of such an association to take title and be a trustee, evidently taking the practical view that it is in fact a unit for the transaction of business. Others hold that, where the unincorporated association has charitable objects, it is incompetent to take, but the gift will be treated as creating a charitable trust for the objects of the association, and that equity will appoint a trustee. Or the gift may be treated as an effective transfer to the members of the association for their own benefit, or as a gift to a corporation which took over the position of the association after the attempted transfer to the association. A comparison to the attitude of equity toward unincorporated associations as cestuis is profitable.” (p. 376, § 125.)
“In the previous discussion (Vol. 1, p. 376, § 125) of the capacity of unincorporated associations to act as trustees, reference has been made to the common-law attitude that such associations are not legal persons and cannot acquire property interests. The older and more conservative cases maintain this same attitude toward an unincorporated association as a cestui que trust. . . .
“The more modern tendency, however, is to give effect to private trusts for unincorpoi’ated associations, under one theory or another. . . ■.
“Where the unincorporated association is charitable in its nature, it would seem easy to support the trust as charitable. The cestuis then would not be the association or its members, but society as a whole or a class of society to be beneficially affected by the workings of the association.
“Looked at from the point of view of trust enforcement and parties to actions, there seems good ground to sustain trusts for unincorporated associations. The members of the association can always sue in equity to enforce the trust for the benefit of the association and so indirectly for their benefit. . . . It is believed that there will be an increasing disposition to uphold these trusts, either as trusts for de facto entities (the associations themselves) or as trusts for the members from time to time.” (p. 489, § 167.)
And in discussing who may be the trustee of a charitable trust, it is said:
“It is well settled that the failure to name any trustee for the charitable trust, or the naming of a deceased person or other nonexistent legal entity, will not prevent the trust from arising, if the other requisite acts of creation have been performed. The court regards the expression of a charitable trust intent and the indication of a class of beneficiaries as the important factors in creation. The personality of the trustee is not vital. There are many possible trustees available. The court can easily supply a trustee. The important matter is that the benefits of the property in question should go to some named social purpose. . . .
“That the trustee named is incompetent to take the legal estate will not bar the creation of the trust. The trust will be regarded as complete, with a mere vacancy in the trusteeship. Thus, unincorporated associations and foreign corporations are sometimes unable to receive title, but charitable trusts with them as trustees are valid. In many states, either by virtue of statute, or by judicial decision, unincorporated associations are regarded as competent trustees for charitable trusts. Some courts treat the association as a de facto legal entity; others treat it as still laboring under its common-law incompetency to take title, but consider the trust established for the purposes of the association.” (2 Bogert on Trusts, p. 1049, § 328.)
And, as bearing on the above questions, see 11 C. J. 332, 337 (Charities §§ 48, 55); 5 R. C. L. 313, 315, 316 (Charities §§ 30, 33, 34).
The matter is also treated in Restatement, Trusts. Although, in section 378 (4), it is said that—
“If an unincorporated association has no capacity to take or hold property for its own benefit, it has no capacity to take or hold property upon a charitable trust.”
Under comment h it is said:
“If property, is conveyed ... by will upon a charitable trust and the person named as trustee is incapable of taking title to the property the intended charitable trust does not fail, unless the settlor manifested an intention that the charitable trust should not arise or continue unless the person named by him acts as trustee or if the purposes of the trust cannot be carried out unless the person named by him acts as trustee.”
In section 397 it is said:
“g. Direct gift to unincorporated charitable association. If the owner of property devises or bequeaths it to an unincorporated charitable association, a charitable trust may be created although the purposes of the trust are not mentioned in the will. If the association is incapable of taking title to the property and administering the trust, the court will appoint a trustee to take the title and administer the trust for the purposes of the association.”
“h. Gift to charitable corporation which has not capacity to take or hold. If a testator devises or bequeaths property to a charitable corporation which has not capacity to take and hold the property, the disposition will not fail if the testator manifested an intention to devote the property to charitable purposes and not merely to make a gift to the particular corporation. This is true whether the gift to the corporation fails because it is incapable of taking by devise or bequest, or because the amount of property which the corporation can hold is limited, or because the corporation is not empowered to administer a charitable trust for the intended purposes, or because the corporation has ceased to exist. In such cases the court can -appoint a trustee to hold the property in trust for the intended charitable purposes.”
We do not consider it necessary to refer to many of the citations in the briefs dealing with the questions mentioned in the above quotations, for to do so would unduly extend this opinion.
Although we have statutes recognizing certain unincorporated organizations as legal entities (R. S. 17-1705, R. S. 1933 Supp. 17-1223 and 40-202), and providing for incorporation of charitable organizations (R. S. 17-1701), and for disposition of the property of both incorporated and unincorporated religious organizations under certain situations (R. S. 17-1711 to 17-1716, inclusive; R. S. 1933 Supp. 17-1716a to 17-1716c, inclusive), there appears to be no statutory provision either allowing or denying an unincorporated charitable organization the right to own and hold personal property. While many unincorporated religious and charitable organizations do hold real estate in the names of trustees, just how they acquire, hold and own personal property is not so clear. But however that might be, this court has recognized that in a charitable trust it is not necessary the beneficiary be a legal entity. See Treadwell v. Beebe, 107 Kan. 31, 190 Pac. 768, where the beneficiaries were the needy and deserving inhabitants of the municipality, and Hollenbeck v. Lyon, 142 Kan. 352, 47 P. 2d 63, where the beneficiaries were the needy poor in and around Abilene. As we interpret the residuary clause under consideration, it appears the testatrix was not making an unqualified gift to the Old Order Church, but was appointing it as trustee of a fund to be invested as directed for the benefit of the church. This was the creation of a charitable trust and it should not be allowed to fail because of any lack of capacity of the designated trustee to so act. It is not necessary that we now determine whether an unincorporated charitable organization has capacity to own and hold property in its own right. We do hold that such an organization can be the beneficiary of a charitable trust. It was proper for the trial court to hold that a charitable trust was created of which Old Order Church, known as Eight Mile church, in Franklin county, Kansas, was the beneficiary, and there being failure by the testatrix to name a capable trustee, to appoint as trustee the subsequently incorporated The Old German Baptist Church of Eight Mile district in Franklin county, Kansas.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The plaintiff in this case appeals from the judgment rendered against him for costs based upon a verdict of a jury in an action brought by him against the Peoples National Bank to recover in two counts the sums of $15 and $100 charged against him by the bank and taken out of his funds by the bank as and for attorney fees in connection with the foreclosure of a mortgage by the bank against the plaintiff.
The answer was a general denial, and the claim of the defendant bank was that these two items were attorney fees it had paid to attorneys in connection with the foreclosure of its mortgage against the plaintiff, but were not charged or claimed as such, but that the bank claimed and collected these amounts by virtue of an agreement with the plaintiff wherein and whereby it agreed to refrain from foreclosing its second mortgage on plaintiff’s property and to extend the time for the payment of the mortgage, and agreed to waive its right to collect the penalty rate of ten per cent interest on the mortgage indebtedness and to charge only six per cent instead if the settlement could be made by plaintiff of the entire amount of mortgage indebtedness due the bank, and it be reimbursed for its costs and outlay, including these two items for attorney fees.
These matters were submitted to the jury with appropriate instructions by the court, and the jury found for the defendant. The court overruled the motion for new trial, then approved the verdict and rendered judgment for the defendant for costs.
The court in its instructions quoted R. S. 67-312, and plainly and positively told the jury that the defendant had no right to charge or collect any attorney fees from the plaintiff for the foreclosure of a mortgage given by him, and unless the jury found by a preponderance of the evidence that the plaintiff had agreed to repay the bank for these items of its expense in a settlement with the bank and the bank in such settlement had extended time of payment and reduced the rate of interest, the verdict must be for the plaintiff. There appears to have been evidence supporting this defense, and the instructions were positively in favor of plaintiff’s theory as to there being no legal right to collect such attorney fees. The plaintiff’s testimony was to the effect that he agreed in the settlement to pay the costs and nothing more, but the jury under these instructions found otherwise.
Appellant complains of the instructions given. They fully accorded with plaintiff’s view of the law as to attorney fees, as now argued in his brief. As to the instructions given concerning the alleged settlement covering the fees paid by defendant, it was the duty of the court to give appropriate instructions on that theory of the case when there was evidence to that effect, even if the evidence was slight.
“It is proper to give an instruction based on evidence, although that evidence is slight.” (McKnight v. Building Co., 96 Kan. 118, syl. ¶ 6, 150 Pac. 542.)
“Instructions should be framed so as to present the law applicable to the facts developed by the evidence introduced on each side.” (Morse v. Ryland, 58 Kan. 250, syl. ¶ 1, 48 Pac. 957.)
We find no reversible eror in the case.
The appellee has filed a motion to dismiss the appeal because the transcript had not been filed with the clerk of the district court. Strictly speaking, the motion should properly be sustained, but where no one has been inconvenienced and the record and files sufficiently present the questions submitted for review, the decision will be upon the merits rather than on the motion to dismiss.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The action is one to recover on a surety bond signed by the American Surety Company given for the faithful performance of John Devlin, an employee of the plaintiff. Verdict was returned in favor of the defendants, and judgment was rendered thereon. The plaintiff appeals.
The plaintiff, a wholesale lumber company of Wichita, operated a lumber yard at Wellington and employed the defendant John Devlin as manager of that yard. He as principal and the American Surety Company as surety gave a bond to the plaintiff in the sum of $2,500 binding themselves to pay to the plaintiff “such pecuniary loss ... as the latter shall have sustained of money or other personal property ... by any act or acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or willful misapplication” on the part of John Devlin. The petition alleged that John Devlin had embezzled, abstracted, and converted to his own use from the lumber yard and business he was managing and conducting for the plaintiff property of the plaintiff, whereby it sustained loss in the sum of three thousand five hundred and eighty and 23/100 dollars. There was evidence which tended to prove that the plaintiff through the misconduct of John Devlin sustained a loss of more than $2,500.
1. The plaintiff argues that “the trial court erred in the instructions to the jury as to the degree of proof required by the appellant.” The instruction complained of was as follows:
“In order for the plaintiff to recover against the defendants, or either of them, it is necessary for the plaintiff to prove by a preponderance of evidence that is clear, decided and satisfactory, that defendant Devlin, during the period of his employment and during the time the bond was in effect, caused plaintiff to sustain loss of money or personal property by reason of acts of fraud, or dishonesty, or forgery, or theft, or embezzlement, or wrongful abstraction or willful misapplication of plaintiff’s property, and unless plaintiff does so your verdict must be for the defendants and each of them.”
In Redden v. Tefft, 48 Kan. 302, 29 Pac. 157, an action in which a forged deed was questioned, this court declared the law to be thai&wkey;
“In civil cases, the preponderance of evidence controls, and this is so although the verdict reflects on the witnesses of the losing side.” (Syl. IT 9.)
In McIntyre v. Surety Co., 97 Kan. 629, 631, 156 Pac. 690, this court said:
"Competent testimony of the breach must be produced by the plaintiff and sufficient to overcome the presumption of honesty, but the strictness of proof required in a criminal proceeding is not essential to a recovery upon the bond. In a civil case a preponderance of the evidence is enough to justify the verdict, although it may involve a finding of fraud or other wrongdoing.”
In Milling Co. v. Surety Co., 104 Kan. 790, 180 Pac. 782, this court declared that—
“Evidence showing that the agent had fraudulently withheld property and money of the plaintiff, and had appropriated it to his own use, is sufficient to warrant a recovery upon the bond in which the defendant undertook to reimburse the plaintiff for any loss that it might sustain by reason of the fraud or dishonesty of the agent amounting to larceny or embezzlement in connection with his duties and obligations; and the fact that the agent had not been prosecuted for embezzlement or that the proof was not strictly the same as is required in a prosecution for embezzlement'will not defeat a recovery.”
(See, also, 23 C. J. 16; 4 Wigmore on Evidence, § 2498.)
The rule is that .fraud is not presumed; it must be proved; but the rule is that it may be proved by a preponderance of the evidence— that a person seeking to prove fraud is not compelled to do so by evidence which is decided, clear and convincing. It was error to give the instruction. It cannot be said that the giving of the instruc tion was not prejudicial error. It may have controlled, and probably did control, the jury in arriving at the verdict.
The judgment is reversed, and a new trial is directed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injuries sustained in an automobile collision at a highway intersection alleged to have been caused by defendant’s negligence. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed.
Appellant’s principal contention is that plaintiff was guilty of contributory negligence which, as a question of law, barred his recovery. Under the facts in this case this contention is so lacking in merit as hardly to be a good talking point. The facts tending to support the verdict, as disclosed by the record and found by the jury, may be stated briefly as follows: The'plaintiff, Lloyd Cook, attended a neighborhood entertainment at a country school. Toward evening he desired to go home to do his chores and return. He was invited to ride home with a neighbor, Mrs. Myler, and got in the rear seat of the car with an uncle of Mrs. Myler’s. Mrs. Myler was driving the car, and on the front seat with her were her two boys. The car was a 1912 model T Ford touring car without a top. At least one cylinder was missing. Its maximum speed was about 15 miles per hour. They had left the little town of Andover and were driving east on what is spoken of as the Thirteenth street road. This intersects with a much-traveled north-and-south road. The fence at the north and west of this intersection is hedge and was trimmed back as much as 200 feet from the corner. Just before going into the intersection both the plaintiff and Mrs. Myler looked to the north and saw what proved to be defendant’s car about 200 yards north of the intersection, and approaching. Neither the plaintiff nor Mrs. Myler anticipated any difficulty in crossing the intersection without a collision with defendant’s car. Mrs. Myler drove into the intersection at a speed of perhaps ten miles per hour. When she reached the center of the intersection she looked again to the north and saw defendant’s car much closer to the intersection; observed it was traveling at a high rate of speed and on the east, or the driver’s left side, of the highway. Mrs. Myler put on a little more gas to hurry across the intersection. .The collision occurred near the east line of the north-and-south road. Defendant’s car struck the left front portion of the Myler car with such force as to crush the wheels over to the side so that the wheel cap of the right front wheel was lying on the ground. The Myler car was dragged or pushed to the south, or southeast, and defendant’s car passed on through a fence and stopped in a field southeast of the intersection. Plaintiff was severely injured. The jury found that the Myler car was five or six feet from the intersection when plaintiff first saw the defendant’s car, which was then 200 yards north of the intersection; that the Myler car was then traveling from 10 to 14 miles per hour, and defendant’s car at 35 miles; that when plaintiff saw defendant’s car he said nothing to Mrs. Myler and did nothing himself to avoid a collision. Appellant argues that if plaintiff was the invited guest of Mrs. Myler he was still under the duty of using due care for his own safety, citing Sharp v. Sproat, 111 Kan. 735, 208 Pac. 613; Naglo v. Jones, 115 Kan. 140, 222 Pac. 116, and allied cases. But it is quite clear these cases have no application to the facts here. Plaintiff had no reason to anticipate that Mrs. Myler would not have ample time to cross the intersection without being run into by defendant’s car. It is true the jury found that the Myler car approached this intersection at from 10 to 14 miles per hour, which is a speed in excess of 8 miles per hour authorized by statute for the crossing of intersections of highways (R. S. 8-122; Laws 1925, ch. 84), but it is clear that this difference in speed, under the facts in this case, was not a contributing cause of the casualty. The testimony in behalf of plaintiff was that the collision occurred east of the center of the intersection, and the physical facts clearly demonstrate that. It necessarily follows that if defendant had been driving on his own right side of the road he would have passed behind the Myler car without a collision. The tracks of defendant’s automobile, examined when they were fresh, showed that his car was on the east, or his left, side of the road, and that when they neared the intersection they turned further to the east.
It is true that evidence on behalf of defendant tended to controvert some of the facts above stated, but in so far as the facts were controverted the jury and trial court have settled such controversy, and it would appear from the reading of this record dhat they settled it in the only reasonable way that could be done.
There is no error in the record, and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the attorney-general to enjoin the city and the trustees of the Hiawatha memorial auditorium from carrying on the picture-show business in the memorial auditorium, which had been built and maintained at public expense. The court denied the injunction and plaintiff appeals.
The electors of the city voted bonds in the sum of |75,000 and used the proceeds in the erection of a military memorial in pursuance of the authority granted by the legislature in the Laws of 1921, chapter 256. Among other rooms the building included an assembly room fitted with a stage, which accommodated about 1,200 persons. Soon after the building was erected the trustees of the auditorium leased the assembly room to one Wm. L. Shenkelberger, to be used in showing moving pictures and also for road shows, at a rental of $7 for each night when picture shows were given, and for one-half of the gross receipts when road shows were given. The right of the trustees to rent the building for these purposes was challenged, and in an injunction proceeding that was brought the court held that the trustees were without right or authority to lease the auditorium for the show business and granted an injunction against the continuance of the business under the lease. Afterwards the trustees began the giving of shows in the auditorium every week night, except on a few occasions reserved for other purposes, charging an admission fee which is about ten cents less than is usually charged by other show houses. The trial court concluded that the statute gave the city and its trustees implied power to carry on the picture-show business, and it therefore denied the injunction. The statute under which the memorial building was erected provided—
“That the various counties and cities of the state of Kansas are hereby authorized and empowered to vote bonds or incur indebtedness in the manner hereinafter prescribed for the erection of such memorials as may be petitioned for as suitable and proper to commemorate the valorous achievements of the citizens of the respective cities or counties who as soldiers, sailors and marines entered the service of the United States during the war with Mexico, the Indian wars, the war of the rebellion, the Spanish-American war, and the great World War from 1914 to 1919, including therein those devoted women of the corps of the Red Cross nurses attached to the service of the United States; and also those citizens of the county or municipality who enlisted in the military, naval or Red Cross service during the great World War from 1914 to 1919. Such memorial so petitioned for may consist of a building, monument, arch, or other structure, or improved highway, park or boulevard.” (R. S. 73-401.)
This statute has already received consideration in cases where cities undertook to lease memorial buildings erected and maintained at public expense to private parties for private purposes. It was held that no power had been conferred by the legislature to lease the whole or any part of the building. (Darby v. Otterman, 122 Kan. 603, 252 Pac. 903; Electric Theater Co. v. Darby, 123 Kan. 225, 254 Pac. 1035; State, ex rel., v. City of Independence, 123 Kan. 766, 256 Pac. 799.) Since memorial buildings may not be leased to private parties to cany on private business, may they be used by the city or its trustees to cany on a commercial enterprise such as a picture show or theatrical business? It is conceded that there is no express authority in the act for the city to engage in the moving-picture business or any other commercial enterprise in the building. A moving-picture show is a well-recognized kind of private business, carried on by private parties in most of the cities, towns and community centers of the state. It is now almost as well recognized and common as the grocery and clothing businesses. A vast amount of money is invested in them, and a municipality engaged in the business will necessarily meet with sharp competition. Can it be said that the power exercised by the defendant in this commercial enterprise may be fairly implied from the powers granted? The legislature has conferred upon cities municipal powers and functions to be exercised for public purposes. In an early case it was held that — ■
“Municipal corporations are creations of law and can exercise only powers conferred by law and take none by implication.” (City of Leavenworth v. Rankin, 2 Kan. 357.)
Powers expressly granted carry with them such powers as are incidental to them and are indispensable to the declared public purpose. (19 R. C. L. 768.) The statute which provides for the erection of military monuments or memorial buildings to commemorate the valorous achievements of American soldiers does not carry the implication that such monuments or buildings are to be used for commercial purposes, or that the cities might heat, maintain and otherwise keep them in repair by the profits gained from carrying on a private business in the buildings. Instead of providing that the expense of maintenance should be met by the profits earned in carrying on a commercial enterprise, the legislature provided that:
“The expense of maintenance of said memorial shall be paid out of the general fund of the county or city, or in case the same shall not be sufficient shall be paid out of a special fund which shall be created, for whiph the counties or cities are authorized to make a levy of not more than five-tenths of one mill per annum.” (Laws 1925, ch. 247.)
Nothing in the powers granted by the legislature warrant the implication that such buildings can be used by municipalities for carrying on a private business for profit, or perhaps for loss. Evidently such a purpose was not within the intent of the legislature, and even if it had undertaken to confer that power it may well be questioned whether the act would have been valid.
Aside from the consideration that the statute does not expressly or impliedly authorize municipalities to carry on the business in which defendants are engaged, we think it is beyond the reach of municipal powers, in that it is repugnant to our state policy as evidenced by the constitutional, statutory and common law of the state. In State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 276 Pac. 31, the court had under consideration the question whether the drainage district .could engage in the business of conducting a sand plant for profit. The sand to be sold was to be obtained from the bed of the river which the directors of the district were dredging for the benefit of the district and the protection of the people from floods. The money for the project was to be derived from taxation and from special assessments levied on property deemed to be specially benefited by the improvements. It was held that the business of operating a sand plant for profit was a commercial enterprise in which the district could not engage in competition with private parties conducting the same business. It was said:
“In accordance with the scope and purpose of our constitution and’ especially section 8, of article 11, it is our policy for neither the state nor subdivisions to engage in any purely commercial enterprise.” (p. 49.)
The court quoted as authority for its holding an excerpt from State v. Kelly, 71 Kan. 811, 81 Pac. 450, as follows:
“It has been the policy of our government to exalt the individual rather than the state, and this has contributed more largely to our rapid national development than any other single cause. Our constitution was framed and our laws enacted with the idea of protecting, encouraging and developing the individual enterprise, and if we now intend to reverse this policy and to enter the state as a competitor against the individual in all lines of trade and commerce, we must amend our constitution and adopt an entirely different system of government.” (p. 836.)
This is deemed a controlling authority in the present action. In the early case of Spencer v. School District, 15 Kan. 259, an action was brought to enjoin the leasing and use of a school building for other than school purposes. The board of directors had allowed the building to be used for divers purposes, such as the holding of religious, political and social meetings, and it did not appear that these meetings were held without the consent of the majority of the electors of the district. The question presented was, May the majority of the taxpayers and electors of the district permit the use of the schoolhouse built with funds raised by taxation for other than school purposes? In answer to the question the court said:
“It seems to us that upon well-settled principles the question must be answered in the negative. The public schoolhouse cannot be used for any private purposes. The argument is a short one. Taxation is invoked to raise funds to erect the building; but taxation is illegitimate to provide for any private purpose. Taxation will not lie to raise funds to build a place for a religious society, a political society, or a social club. What cannot be done directly cannot be done indirectly. As you may not levy taxes to build a church, no more may you levy taxes to build a schoolhouse and then lease it for a church. Nor is it an answer,to say that its use for school purposes is not interfered with, and that the use for the other purposes works little, perhaps no immediately perceptible injury to the building, and results in the receipt of immediate pecuniary-benefit. The extent of the injury or benefit is something into which courts will not inquire. The character of the use, is the only legitimate question.” (p. 262.)
It was accordingly held that the use was unauthorized by law and might be enjoined at the instance of a taxpayer, even if a majority of the taxpayers and electors assent to such use and it will result in pecuniary benefits to the district.
It is argued that the giving of these shows in the auditorium will be of some educational advantage to the community, but it cannot well be said that moving picture and road shows are educational in purpose or effect. In Ohio a city undertook by ordinance to appropriate public funds for a municipal moving-picture theater, and the right to do so being challenged, the court concluded that it could not be done, as it would be an unauthorized use of public money. It was said that the “suggestion that moving-picture exhibitions might be made educational is gratuitous because that is not their natural object.” (p. 97.) It was further said, in a concurring opinion, that—
“The question has been mooted and debated in this case, whether the maintenance and management of moving-picture shows is a legitimate function of municipal government. This question would better be raised on a different record than the one before us. But it has been pressed upon us as one fairly arising upon the facts of the case. As defined by this record, the moving-picture theater must be understood according to the common acceptation — a business for profit. It may be for loss. Public revenue may not be raised nor expended in that way. This is not a function of constitutional government in Ohio. The kinetoscope may be used at some time, in some way, in the proper management of municipal affairs and for the public weal. But the moving-picture show business, as defined, or rather undefined, in this ordinance, is not a fair instance of such a use. Upon the record before us, it is, to say the least, prima facie ultra vires of the municipal council.” (State, ex rel., v. Lynch, 88 Ohio St. 71.)
We conclude that the city and the trustees are without authority to give moving-picture and road shows in the memorial auditorium built at public expense and maintained, at least in part, at public expense; therefore the judgment is reversed and the cause remanded with directions to enter judgment for plaintiff.
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The opinion of the court was delivered by
Burgh, J.:
The action was one by the holder of an oil lease to enjoin encroachment on its privileges and to quiet title to its leasehold interest against claimants under rival leases. The land involved is a railroad right of way. The fundamental question was whether deeds in plaintiff’s chain of title were effective to convey what for brevity and convenience is usually spoken of as the fee of the land servient to the right of way. Plaintiff was denied relief, and appeals.
The interests of all parties were derived from Leonard K. Scrog-gin. In 1911 Scroggin deeded to the Wichita Midland Valley Railroad Company a strip of land extending through lands which he owned in the city of Oxford, and in the southeast quarter of section 14 adjoining the city on the south. The deed recited it conveyed the strip for right-of-way purposes. The strip in its relation to numbered blocks and outlots in the city of Oxford, and to the southeast quarter of section 14, is disclosed on the accompanying map.
Before the deed was executed streets and alleys on each side of the granted right of way had been vacated from Cedar street southward. After the deed was executed, what were formerly outlots 24 and 25 and blocks 89 and 90, were designated as tract 5 in the northeast quarter of section 14 in which the city of Oxford is situated.
Scroggin died intestate in 1916, leaving a widow, children and grandchildren as his heirs. He left more than 35,000 acres of land, situated in the states of Illinois, Kansas, Minnesota, Mississippi, Nebraska, and the province of Saskatchewan. The lands were valued at more than $1,700,000. Voluntary partition was made by exchange of deeds among the heirs. Speaking generally, for purpose of the narrative, blocks 89 and 90, outlots 22, 23, 24 and 25, and the southeast quarter of section 14, except a tract of 4.56 acres in the northeast corner which Scroggin had disposed of, were conveyed to the widow, Rhoda A. Scroggin, by her coheirs. Subsequently Rhoda A. Scroggin deeded to her daughter, Edna P. Emrich, who leased to the Roxanna Petroleum Corporation. Conceiving that the fee underlying the right of way had not been conveyed to Rhoda A. Scroggin, the heirs of Scroggin other than his widow and Edna P. Emrich, representing 191/208's of the total underlying interest, made a lease to S. D. Jarvis.
The deeds to Rhoda A. Scroggin were by two groups of heirs, and each group made two deeds. One deed of each group related to the city tracts, and the other td the quarter section. The deed of Alfred C.'Scroggin and his group, relating to the quarter section, recited a consideration of one dollar, division of real estate held in common, and other good and valuable considerations. The deed conveyed lands in Cloud, Sumner and Cowley counties, contained full covenants of warranty, and contained the following recital:
“The grantors [naming them] and the grantee, Rhoda A. Scroggin, being the surviving widow and sole and only heirs at law of Leonard K. Scroggin, deceased.
“This deed is one of a series of deeds made to divide a part of the real estate of which the said Leonard K. Scroggin, late of the county of Logan and state of Rlinois, died seized, intestate.”
The description with which we are concerned follows:
“Also, the following-described real estate situated in the county of Sumner and state of Kansas, to wit: . . . The southeast quarter of section 14, excepting 4.56 acres out of the northeast comer thereof, in township 32, south of range 2 east, less railroad right of way; ...”
The deed was not signed by one of the named grantors, Angeline Rothwell. Her death occasioned execution of deeds by her heirs. Their deed of the quarter section was identical in statement of consideration, description of land, and warranty, with the deed of the Alfred C. Scroggin group, and contained the following:
“The grantors, Murtie Gassaway, Thomas L. Rothwell and John M. Roth-well, are the sole and only heirs at law and only devisees under the last will and testament of Angeline Rothwell, deceased, who was an heir at law of Leonard K. Scroggin, deceased.
“This deed is one of a series of deeds made to divide a part of the real estate of which the said Leonard K. Scroggin, late of the county of Logan and state of Illinois, died seized, intestate, the intention herein being to convey the interest acquired by the said Angeline Rothwell during her lifetime as heir at law of the said Leonard K. Scroggin.”
The deed by the Alfred C. Scroggin group of the city lots was identical in general form with their deed of the quarter section, and the description read as follows:
“The west half of outlot 22, and all of outlot 23 and what was formerly outlot 24 and 25, and the west half of block 89 and 90 in the town of Oxford, west division, in Sumner county, Kanass, less railroad right of way over and across the same (also designated as tract 5 in the northeast quarter of section 14), . . .”
The deed by the Rothwell heirs of the city tracts was identical in form with their deed of the quarter section, and the description was the same as the description in the Alfred C. Scroggin deed of the city tracts. The expression in the deeds of the city tracts, “less railroad right of way over and across the same,” referred to the right of way of the Atchison, Topeka & Santa Fe Railway Company, and not to the Midland Valley right of way.
The Scroggin right-of-way deed was expressed to be “for a fight of way over and across,” and it is not debatable that only an interest, which for brevity and convenience is usually called an easement, was conveyed. Therefore, the question relating to the city tracts is whether the description, “the west half of outlot 22 . . . and the west half of blocks 89 and 90,” conveyed to Rhoda A. Scroggin the fee of the land subservient to the Midland right of way adjoining the tracts on the east.
If the tracts had abutted on a highway laid out over the east half of the tracts while Scroggin owned them, the fee would have been conveyed by the deed of his heirs. That question was determined in the case of Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 Pac. 913. In the opinion in that case the following declaration of law was made:
“The result is, the rule adopted in this state is that intent to include the highway is inferred as a matter of law, unless intent to exclude is plainly expressed.” (p. 206.)
The reasons for the declaration were stated in the opinion. The question reduces, therefore, first, to whether the highway rule applies generally to railroad rights of way, and if so, second, whether the general rule applies to this right of way.
The court holds the highway rule applies to railroad rights of way. The reasons for the rule are the same in one case as in the other:
“The easement which a railroad acquires in its right of way is like that of a highway, in that it is for the use of the public. [Citations.] It is one which has attached to it the incidents of exclusive occupation and enjoyment for the public use in a peculiar degree. [Citations.] It possesses the feature of prospective permanence no less than does that of a highway. All of the considerations which have led courts generally to recognize a presumed intent to have a bound upon a highway, stream, or canal, carry to the middle line, appear to be present in the case of a bound upon a railroad right of way; . . .” (Center Bridge Co. v. Wheeler & Howes Co., 86 Conn. 585, 589.)
The specific question was considered by the circuit couR of appeals for the 8th circuit, in a case involving the same right of way in its relation to blocks 87 and 88 lying immediately north of the Scroggin blocks 89 and 90. The conclusion of the court is expressed in the headnote of the report of the decision:
“When owner conveys a tract of land abutting on a railroad right-of-way tract,’ in which such grantor owns the servient estate and the railroad the dominant estate for right-of-way purposes, his conveyance passes to his grantee such servient estate, unless the intention not to do so be clearly indicated.” (Roxana Petroleum Corportation v. Sutter, 28 F. [2d.] 159.)
The decision was rendered on July 28, 1928. The decision was supported by decisions in railroad right-of-way cases cited in the opinion, to which may be added the case of Rice v. Coal Co., 186 Pa. 49, and the decision is approved by this court.
It is contended the general rule should not apply in this case because conveyance of the west half of the blocks and outlot disclosed intention to exclude interest in the east half. It is not strictly accurate to say that the description was specifically of the west half of blocks 89 and 90. The description was of what were formerly blocks 89 and 90, also designated as tract 5, and the old numbers were used to aid identification of land embraced in a larger consolidated tract. The precise legal question presented was dealt with in the Bowers case, supra. The description in the Bowers case in fact bounded the land on the highway without referring to it, and the court held the purpose to exclude the adjoining way must be disclosed by express declaration, or the equivalent of express declaration, in the instrument.
It is contended, further, the general rule should not apply in this case because the right of way is wider than rights of way usually are, and the land is usable and valuable. It is because somebody thinks the land is usable and valuable to him, or because some adventitious circumstance does make it usable and valuable, that those mischiefs are fomented which the general rule was designed to suppress. The merit of the rule lies in the fact that it conserves the social welfare by requiring a definiteness and certainty of expression of intention which involves no hardship on a grantor. The greater the value of the tract the more certain and bitter the strife, and the rule would be defeated if, as applied to the right of way shown on the map, it governed for some distance at the south, and then became of dubious authority which began to fade out toward the north, and finally vanished some distance from the quarter-section line. In the Sutter case, supra, the circuit court of appeals regarded this same right of way over the east half of blocks 87 and 88 as a “narrow strip.” “Narrow” is a relative term and “strip” does not indicate exactitude of dimension. The law does not fix the minimum or maximum of either term, just as it does not fix width of a right of way. Lack of precision does not, however, make use of the terms undesirable. In this instance the width of the Midland Valley tract does not prevent it from properly being designated a right of way, and if in any case a right of way seems so wide to a grantor that he wants to keep his interest in the land, he can easily frame his deed according to the general rule.
The court stated the following conclusions of law applicable to the deeds of the quarter section:
“The descriptions in the several deeds, 'less railroad right of way,’ are • ambiguous, and testimony and other evidence to explain the meaning of the language used is admissible and to be considered in construction.”
The trial had been conducted over plaintiff’s objection in ac cordance with the view of the court stated in the conclusion of law. Extrinsic evidence was introduced which the court considered, and from the deeds and the evidence the court found the deeds effectually conveying the land on both sides of the right of way were ineffectual to convey the servient estate in the right-of-way land. If the extrinsic evidence were to be considered, this court would reach a contrary conclusion. This court holds, however, that the deeds were not ambiguous, and that if the district court believed them to be ambiguous it should have stopped the trial by judgment for plaintiff.
The deeds were signed by four sons, three daughters, three heirs of a deceased daughter, five grandsons, and four granddaughters of Scroggin, and their respective husbands and wives. The deeds told who the grantors were. They and the grantee were all the heirs of Leonard K. Scroggin, deceased. The deeds show the grantors lived in six states of the United States, and in as many as four counties of one of the states. The deeds conveyed land in three counties of this state, and the deeds explained what they were made for. The consideration was division of real estate held in common, and each deed recited it was one of a series of deeds made to divide a part of the real estate of which Scroggin died seized. The deeds left no room for doubt that the scattered Scroggin heirs, of near and remote relationship, were converting their undivided interests in his land into interests in severalty. The deeds must be interpreted in accordance with this predominant purpose, and any mere doubt which might arise should be resolved in a manner to accomplish the purpose, and not to leave it unfulfilled.
The deeds relating to the southeast quarter conveyed 1,515 acres of land by government description. Besides the right of way over and across the southeast quarter, a certain half section was described, “less railroad right of way.” The notion that each one of the heirs, while seeking the benefit of division of large quantities of land, in fact had in mind the fee underlying the two rights-of-way strips, and in fact intended to keep and hold in common the relatively inconsequential estates in the strips of servient soil, seems to this court quite fanciful.
If the deeds were to be interpreted in the manner suggested, they would divide the southeast quarter into two distinct tracts separated by an unconveyed right of way strip, which would have passed had the two tracts been conveyed separately. The public policy which dictated the rule in the Bowers case.would be contravened, and all the reasons for application of the rule in the Bowers case are present.
The deeds are to be interpreted according to the rule of interpretation prescribed by R. S. 67-202, which reads as follows:
“Every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.”
In the case of Platt v. Woodland, 121 Kan. 291, 246 Pac. 1017, the court said:
“The word estate is used in R.S. 67-202 as a general and not a technical term. It connotes whatever the grantor could convey, and the statute is to be read as though it were phrased, ‘Every conveyance of real estate shall pass all the interest of the grantor therein, unless the intent to pass a lesser interest shall expressly appear or be necessarily implied in the terms of the grant.’ ” (p. 298.)
Each deed was of the southeast quarter of section 14. The grantors had no interest in the four-acre tract in the northeast corner, could not make an effective conveyance of it if they desired, and the exception necessarily excluded that tract from operation of the grant. With respect to the remainder of the quarter section, the grantors’ estate consisted of full ownership of the land on both sides of the right-of-way strip, and full ownership of the strip, diminished only by the estate of the railroad company. That estate they could not pass by conveyance any more than they could pass an interest in the four-acre tract. All their own estate did pass, unless they kept a portion of it. In order to keep a portion of their own estate it was necessary for them to do so by express exclusion. There is no basis in these transactions for necessary implication.
The words “less railroad right of way” are words of diminution. They expressly refer to the railroad company’s estate; and by confining the reference to the railroad company’s estate, import of the diminution is fully satisfied. The words do not make it expressly appear that besides the railroad company’s estate the estate of the grantors also should not pass.
Ambiguity in a conveyance does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. Should there be doubt in a right-of-way case about what a grantor intended to pass, the totality of his own interest would pass, by virtue of the statute prescribing method of mani festing intention, because the purpose of express manifestation is to leave no room for well-founded doubt.
It is contended this court has declared that the description “northeast quarter of section 19 . . . excepting the right of way of the A. T. & S. F. Railway Company,” contained a latent ambiguity with respect to quantity of interest conveyed. The declaration was made, and was made in a case in which the decision depended on whether the exception divided the quarter section into two distinct tracts, separated by the strip of land used for right-of-way purposes. The opinion discloses, however, that the ambiguity arose from the fact that the phrase “right of way” might refer to complete ownership,, or might refer merely to an easement. The decision was rendered in January, 1905. Cause of ambiguity on that score was removed by a decision of the court rendered in June of the same year. A railroad company took a warranty deed from Simmons of a strip of land through his farm, for right-of-way purposes. No railroad was built, and the railroad company conveyed the strip to Abercrombie. It was held Abercrombie obtained nothing by his deed.
“An instrument which is in form a general warranty deed, conveying a strip of land to a railroad company for a right of way, will not vest an absolute title in the railroad company, but the interest conveyed is limited by the use for which the land is acquired, and when that use is abandoned the property will revert to the adjoining owner.” (Abercrombie v. Simmons, 71 Kan. 538, syl. ¶ 3, 81 Pac. 208.)
The meaning of the phrase “right of way” was thus definitely established, so far as the interest of a railway company regarding the land to which the phrase refers is concerned. The nature of the interest was discussed in the opinion in the Abercrombie case. While the term “easement” does not accurately describe the interest, the term is precise enough when the purpose is to discriminate the interest in a general way from the totality of rights, privileges, powers and immunities which constitute complete ownership. So considered the phrase “right of way” means an easement.
It is contended, however, that the decision in the Abercrombie case recognized the fact that the description was doubtful, and held the doubt might be removed by resort to extrinsic evidence. All that was said on that subject related to identification of the route of the proposed railroad through the quarter section, and had no relation to the interest of the railway company in the land when its locality was ascertained.
The deed of Rhoda A. Scroggin to her daughter, Edna P. Emrich, recited that it was made in consideration of love and affection. The city tracts were described “less railroad right of way over and across the same,” which refers to the Santa Fe right of way. The description relating to the quarter section excepted the four-acre tract, and concluded as follows:
“and excepting the railroad right of' way of the Wichita & Midland Valley Railroad Company over and across said southeast quarter.”
In an interpretation of this deed the court is not inclined to accord special importance to the word “except” on one side, or the words “over and across” on the other. No distinction can be made between this conveyance and the conveyance of the Scroggin heirs to Rhoda A. Scroggin, without regarding the phrase “railroad right of way” as applying to the physical thing to which the railroad interest related, instead of as applying to the interest of the railroad company in the physical thing. Failure to make the distinction has occasioned much confusion. Persons and corporations come and go, but land has permanent physical existence. What the persons and corporations really have in their coming and going is interests in the land. The statute prescribing rule for interpreting conveyances gets to the heart of the matter by requiring consideration of interests. In this instance the railroad right of way of the Wichita & Midland Valley Railroad Company constituted an interest known as an easement. That interest was excepted from the grant, but the deed did not make it clearly appear, or dimly appear, that any interest of the grantor was excepted.
The result of the foregoing is that the district court’s conclusion of law, which has been quoted, and other related conclusions of law, were unsound. This court holds that the deeds of the Scroggin heirs to Rhoda A. Scroggin, and the deed of Rhoda A. Scroggin to Edna P. Emrich, passed the entire interest of the grantors to the grantees. The Emrich lease to the Roxana Petroleum Corporation, if otherwise effective (a matter yet to be determined in the district court), passed all the interest of the lessors to the lessee for the purpose described.
An issue of estoppel to claim that both easement and fee in the right of way did not pass by the various deeds, was presented and tried. The court found the facts, but because of the view it took of the rights of the parties, did not regard the subject of estoppel as material. The facts found did not warrant judgment against plain tiff .on the ground of estoppel. To show the correctness of this conclusion would too greatly extend this opinion.
The interests of some cross appellants were adversely affected by the judgment of the district court.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment and otherwise proceed in the case in accordance with the views which have been expressed.
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff, a Mitchell county schoolteacher, brought mandamus proceedings against defendant as county superintendent to compel him to renew her county teacher’s certificate in conformity with plaintiff’s interpretation of the pertinent statute.
The trial court declined to issue the writ and the case is here for review.
The pertinent facts were these:
The plaintiff, Rosa Schneider, is a resident citizen of Hunter, Mitchell county. In 1929 she attended the State Teacher’s College at Hays, in Ellis county, following which she took an examination in Ellis county and received a certificate of the first grade which entitled her to teach in the elementary schools in Ellis county for three years from its date, July 8, 1929.
On receipt of this certificate plaintiff returned to her home and presented it to the then county superintendent of Mitchell county. He endorsed it and thereby licensed Miss Schneider to teach in the elementary schools of Mitchell county. In the autumn of that year she started teaching in Mitchell county, and she taught in that county each school year until June, 1932. In the interval plaintiff attended the teacher’s institutes in Mitchell county and performed all the professional work prescribed by the county superintendent, and on June 19, 1932, the county superintendent of Mitchell county renewed her certificate for another three-year term expiring July 8, 1935. Plaintiff continued to teach in Mitchell county for the ensuing three years, and to attend the Mitchell county teachers’ institutes and to perform the prescribed professional work; and about the time her certificate- was again to expire she presented it to the present incumbent of the office of county superintendent for renewal. This service that functionary declined to perform.
Hence this lawsuit in mandamus to compel performance of this duty. The trial court declined to issue the writ, and the case is here for review.
The issuing, endorsing and renewing of county teachers’ certificates has been the subject of progressive legislation in recent years. At the time plaintiff’s certificate was issued by the examining board in Ellis county the law was, and still is, as follows:
“Certificates of the first grade may be issued to persons of good moral character and not less than twenty years of age who have taught successfully not less than sixteen school months and who by written examination shall secure an average grade of ninety percent with no grade below seventy-five percent in all branches required for a second-grade certificate, and in English, history and algebra; and who in addition thereto have completed a four-year course of study in a high school or academy approved by the state board of education: Provided, That nothing herein shall prohibit the renewal from time to time of any first-grade certificate in force at the time of the passage of this act, if the holder shall meet the professional requirements of the county superintendent ... A certificate of the first grade may be renewed at its expiration upon the payment of the fee of one dollar to be turned into the normal-institute fund if the holder has attended at least ninety percent of the lime of two county institutes: Provided further, That the applicant shall have performed such professional work as the county superintendent shall prescribe for such renewal.” (R. S. 1933 Supp. 72-1330.)
“That boards of county examiners may issue teachers’ certificates of two grades as provided in this act; namely, second grade and first grade; and said certificates shall be valid only in elementary schools in the county in which they are issued for terms of two years and three years respectively: Provided, That upon payment of a fee of one dollar, w'hich shall be turned into the normal-institute fund, certificates of the second and first grade may be endorsed by the county superintendent of public instruction of any county in the state, at the option of the county superintendent to whom application is made, and when so endorsed such certificates shall be valid in the county in which they are endorsed for the remainder of the term for which they were issued; ... A certificate issued under this act may be revoked by the board of examiners of the county in which said teacher is teaching on the ground of immorality or for any cause which would have justified the withholding of the certificate when it was granted; . . .” (R. S. 1933 Supp. 72-1326.)
A majority of this court holds that plaintiff’s certificate is still an Ellis county teacher’s certificate notwithstanding its endorsement and first renewal by the county superintendent of Mitchell county; and as such Ellis county certificate, the matter of its second renewal in Mitchell county is addressed to the discretion of the present defendant county superintendent of that county, and not to him as a mere matter of his discharging a purely ministerial duty.
It follows that the judgment of the district court was correct and it is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by a railway company from a judgment rendered against it for damages received by the plaintiff in a collision of his automobile with the defendant’s train at the crossing of the railway track over Quincy street in the city of Pitts-burg.
The street runs east and west, and the railroad crosses it running from the northeast to the southwest. The plaintiff was going east on the south side of Quincy street in a Ford automobile shortly after noon on September 3, 1931, and he alleged the train was coming toward the crossing from the northeast and that the view of the train coming from that direction was obstructed to one traveling east on Quincy street by a building and trees for a distance of about sixty feet to the west of said crossing. Plaintiff alleged that he was traveling—
“. . . at a rate of speed of about ten to fifteen miles per hour, when said automobile became stalled upon said railroad crossing on said Quincy avenue, and while plaintiff was so situated and before he could get out of said automobile and away from said automobile and the said railroad crossing to a place of safety, the said defendant’s gasoline motor engine in charge of the agents and servants of the said defendant, the name of such agents and servant plaintiff does not know and cannot allege, and with two cars, a baggage and passenger car each, attached to said engine, suddenly and without any warning or signal of any kind, either by bell, whistle or otherwise, and without having said engine and cars under control so that they could be stopped by brakes or. otherwise; without the agents and servants in charge of said engine and cars having a view of said crossing, and without maintaining or having any flagman at said crossing, suddenly and at a high and dangerous rate of speed operated and ran said engine and cars from behind said obstructions approaching from the northeast over and upon said crossing and against plaintiff. . . .’’
The petition then described the nature of the collision and the character and extent of the personal injuries received, and prayed for damages in the sum of $3,000. The answer of the railway company consisted of a general denial and a plea of contributory negligence. The reply was a general denial.
Along the line of the allegations in the first part of those above quoted, with reference to plaintiff’s automobile becoming stalled upon the railroad crossing, we are informed by the briefs that evidence was introduced as to the last clear chance, and that the trial, court gave some instructions on that subject.
The jury rendered a verdict for plaintiff for $1,525, and answered the following special questions:
“1. Do you find that on the occasion in question the railroad track was straight for at least an eighth of a mile northeast from the point of accident? A. Yes.
“2. At what rate of speed was plaintiff driving the automobile in approaching the railroad track on the occasion in question? A. Ten to fifteen miles per hour.
“3. At what rate of speed was defendant’s train approaching the point of accident on the occasion in question? A. Fifteen to twenty miles per hour.
“i. On approaching the railroad track on the occasion in question did plaintiff stop before going on track? A. No.
“5. If you answer the preceding question in the affirmative state how many feet from the point of accident plaintiff thus stopped? A. . . .
“6. On the occasion in question do you find that plaintiff, when thirty or thirty-five feet from the point of collision, saw the defendant’s train approaching? A. Yes.
“7. On the occasion in question do you find that plaintiff, when thirty or thirty-five feet from the point of collision, saw defendant’s train approaching about one hundred feet from the point of collision? A. Yes.
“8. On the occasion in question, from the time plaintiff got within twenty-five feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant’s motor engine and car, if before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.
“9. On the occasion in question, from the time plaintiff got within twenty feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant’s motor engine and car, if, before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.
“10. If you find for the plaintiff please state upon what grounds you base your verdict? A. We feel that the train could have been stopped.”
Defendant moved to return the jury for a full and responsive answer to question No. 10. This motion was denied as were also motions for judgment for defendant on the answers to the special questions notwithstanding the general verdict and for a new trial. From these rulings and the judgment rendered for plaintiff the defendant appeals.
The abstract does not contain any of the evidence, but only the pleadings, verdict and answers to special questions, journal entry and notice of appeal. Appellee has filed a counter abstract for the purpose of showing the evidence of the plaintiff on the question of the last clear chance.
The appellant insists that this doctrine was not alleged in the petition and proof along that line is along a line essentially different from that alleged in the petition, citing especially Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619, and McDowell v. Geist, 134 Kan. 789, 8 P. 2d 372, holding that the pleadings should be along the line of a single and definite theory. The petition unquestionably alleged plaintiff's right to damages for injuries received on account of defendant’s negligence, setting out several features of negligence. Yet there is in the petition some of the allegations upon which there might be based the doctrine of last clear chance, but not enough, apparently, to make that feature a complete cause of action. The petition alleges the matter of plaintiff’s automobile being stalled on the crossing and being so situated that he could not get out of the automobile or away from the automobile and the crossing, but it does not allege what the defendant could have done subsequently, but failed to do, that would have avoided the injury.
The case of Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, cited in this connection, does not reach the question of confusion or failure of pleadings, but plainly eliminates contributory negligence from the application of this doctrine.
The case of Juznik v. Railway Co., 109 Kan. 359, 199 Pac. 90, was very much like this case both in facts and pleading. The plaintiff in driving across a railway track on a public highway stalled on the crossing, his engine being killed, and before he could extricate himself a switching freight train backed upon him and his car, crushing his car and injuring him, and it was held:
“Where the plaintiff in his petition set forth the circumstances under which the collision occurred, and defendant alleged that plaintiff’s injuries were the result of his contributory negligence, a charge which the plaintiff denied, and proof was offered tending to show that the train was backed upon plaintiff after those operating it saw his helpless plight on the crossing, the court was warranted in instructing the jury as to the doctrine of the last clear chance, although the plaintiff had not stated in words in his petition that he was invoking that doctrine, and although he had not admitted that he was negligent in driving upon the crossing.” ( Syl. ¶ 2.)
The allegations of negligence in the Juznik case were in running the train upon the crossing and backing upon plaintiff without signal or warning and without keeping the engine and train under control, and without having any brakeman or switchman on the rear of the train. The evidence on the subject of last clear chance in the Juznik case was introduced without objection, and at the end of the trial the court permitted the plaintiff to amend his petition to conform to the proof. In the opinion the court held, in substance, that it was enough to show that the negligence, if any, of the plaintiff had culminated, and that the subsequent negligence of the defendant after discovering the peril of the plaintiff was the immediate, efficient and proximate cause of the injury. This liberal rule does not seem to have been changed or in any way limited by subsequent decisions. Appellant especially calls attention to the differences as to the making of no objections and being permitted to amend the petition, but notwithstanding these differences we are inclined to follow the broad and general principle, above quoted, that there was sufficient in the petition to inform and advise the defendant that plaintiff might be relying upon the doctrine of the last clear chance as well as the general doctrine of negligence as specifically alleged. In effect the same allegations of negligence apply as alleged, but are limited to the situation after the discovery of the peril of the plaintiff.
The appeal of defendant is based mainly upon the failure of the trial court to render judgment for the defendant on the answers' to the special questions notwithstanding the general verdict, and appellant refers especially to questions 4, 7 and 10. The answers to questions 4 and 7 are urged as showing conclusively contributory negligence on the part of the plaintiff. Appellee in reply argues that even if there may have been contributory negligence on the part of the plaintiff it had culminated and ceased and “that the subsequent negligence of the defendant, after discovering his peril, or after it should have been discovered by the exercise of reasonable care and diligence, was the immediate and proximate cause of the injury.” This attitude makes it unnecessary to pursue the question of contributory negligence further because appellee is apparently relying entirely upon the matter of the last clear chance, which disregards negligence of both parties and especially contributory negligence prior to the time it entirely ceased. While the answers of the jury to these two questions might very probably prevent the plaintiff from a recovery under the usual form of action for the defendant’s negligence, they would not be controlling in an issue of the last clear chance.
The answer to special question 10 is the vital one, as the jury there designated the ground of negligence upon which it based its verdict, the answer being “We feel that the train could have been stopped.” It is suggested, and perhaps correctly, that the jury really meant the same as “find” by the use of the word “feel.” If so, then the question and answer would read, “Q. (10) If you find for the plaintiff please state' upon what ground you base your verdict? A. We find that the train could have been stopped.”
It is a well- and long-established rule in this state that a specific finding of negligence acquits the defendant of every other charge of negligence alleged in the petition, and also that the finding in order to bind the defendant must be one of the charges of negligence alleged. On the first proposition, it was held in Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590:
“Where a recovery is sought by reason of several negligent acts of the defendant, and the jury in answer to a special question finds that the negligence upon which they base their verdict is a certain single act of the defendant, the finding in effect acquits the defendant of every charge of negligence alleged in the petition or mentioned in the evidence except the one specifically designated in the finding.” .(Syl.)
On the second proposition it was held in Keck v. Jones, 97 Kan. 470, 155 Pac. 950:
“In an action for damages by the injured pedestrian the petition charged that the driver of the car was negligent in enumerated particulars. The jury were 'asked to state in what his negligence consisted if they found he was negligent. The answer was that he was negligent in a particular not complained of in the petition. Held, the driver was entitled to judgment on the special finding.” (Syl. ¶ 2.)
We are, on the strength of these and numerous other decisions, limited by this answer to question 10 to one act of negligence, and that is the failure to stop the train which the jury found could have been stopped, but we do not find any allegation of that kind in the petition, and it must be one of the allegations of negligence before it can be an answer binding upon the defendant. The only allegation of negligence with reference to stopping the train was as follows: “without having said engine and cars under control so that they could be stopped by brakes or otherwise.” The answer to this question is therefore not only not an allegation of the petition, but directly opposed to the allegation of the petition. The plaintiff comes into court on the allegation of negligence that defendant was running the train so beyond control that it could not be stopped by brakes or otherwise, and the jury finds the exact opposite, which of course cannot bind the defendant. This applies equally where the last clear chance is the issue. Defendant is only required to do what can reasonably be done after the position of peril arises or could have been observed, and is not expected to do something which plaintiff says cannot be done.
It was said in Atherton v. Railway Co., 107 Kan. 6, 190 Pac. 430:
“The trial court correctly charged that after plaintiff’s truck was negligently driven between the streetcar tracks, and the plaintiff was in a position of peril and his own negligence had ceased, the defendant would be liable if it saw or by the exercise of ordinary care could have seen him in such position in time to avoid injuring him, and failed to do so.” (Syl.)
In the case of Turner v. Railway Co., 106 Kan. 591, 189 Pac. 376, cited in the briefs, it was said in the closing part of the opinion:
“The requested instruction as to wantonness and last clear chance was properly refused, first, because neither of these elements was pleaded, and second, because the evidence did not fairly tend to show either wantonness or circumstances making applicable the doctrine of last clear chance.” (p. 601.)
We conclude that this answer, being directly contrary to the allegations of the petition as to negligence, cannot bind the defend ant, and that the motion of the defendant for judgment for the defendant on the special findings of the jury should have been sustained.
The judgment is reversed with directions to render judgment for the defendant on the special findings of the jury.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the plaintiff bank from a judgment rendered against it refusing to set aside two deeds which it is claimed by the bank deprived it as a creditor of one of the defendants from collecting its judgment rendered against such defendant in another case.
More than six months intervened between the rendition of the judgment in this case and the overruling of plaintiff’s motion for a new trial, so that only those errors that would properly come under the ruling on the motion for a new trial are here for review.
The petition alleges want of consideration for such conveyances, and that they were executed and delivered for the purpose of cheating and defrauding the plaintiff bank.
The deeds in question were reciprocal between two brothers, conveying interests they had inherited from their parents, both of whom died intestate. The mother owned 120 acres of land in Jewell county on which the son George lived with his family prior to her death in 1919 and has ever since lived. The father owned a half section in the same county on which he and his son Clem and family lived at the time of the father’s death on March 17,1932. These two sons were the only children and therefore they each after the death of the father inherited an undivided half interest in both these tracts of land. George claimed to have made an oral agreement with his mother to purchase the 120-acre tract for $6,000 with interest at 4 percent until paid, but he had paid only $100 and the taxes and had made improvements thereon, occupying it as a homestead. He claimed to be indebted to his brother, to his father and to the plaintiff bank.
George and his wife the day after the death of the father executed, acknowledged and delivered to his brother a deed for his undivided half interest in the half section owned by their father, which deed was recorded March 24, 1932. This is the deed in particular which the plaintiff seeks to set aside, although another deed is included in the petition in the same connection, and that one is from C'lem and wife, dated May 13, 1932, conveying his undivided half interest in the 120-acre tract to George.
The plaintiff bank became a creditor of George when it purchased a $3,000 note given by him to one Schneider, secured by a second mortgage on another tract of land in Jewell county on which an insurance company already had a first mortgage for $4,500. Foreclosure proceedings were commenced by the insurance company in December, 1931, in which the bank as well as George and wife were defendants. Before any judgment was rendered an effort was made by George, Schneider and the bank to adjust this second mortgage feature by a long, three-sided lease and option contract, but it was never concluded, and on March 24, 1932, the bank.filed in the foreclosure case, by leave of court, a cross petition against George and wife and they answered, but judgment of foreclosure was rendered in favor of the insurance company on March 24, 1932, and on April 14, 1932, a personal judgment was entered against George and wife in favor of the bank for $3,201.62, with interest, and such judgment was made a second lien, but the insurance company purchased the property, and the bank, before commencing this action, had execution issue, which was returned endorsed “no property found.”
The defendants, George and Clem, in the case at bar answered the petition of the plaintiff bank by admitting the family relationship, the inheritance, also the foreclosure proceedings and judgment of the plaintiff bank against George, but denied all other allegations of' the petition and then alleged the details as to the consideration for the two deeds, the items of indebtedness of George to Clem and to their father and a copy of the nearly consummated contract and the correspondence concerning the proposed settlement of the indebtedness of George with the bank during the month of March, 1932, when the deeds in question were both prepared and one of them was executed and delivered. To this the plaintiff filed a reply containing a general denial and a plea of estoppel as to the settlement negotiations because of judgment in the foreclosure case.
After hearing the evidence the trial court found that “plaintiff has not proven a right to have the deeds in question, or either of them, set aside, and that said deeds should not be set aside,” and rendered judgment accordingly, and later overruled plaintiff’s motion for a new trial.
The appellant ably argues the errors assigned under five different headings: First as to the admission of incompetent evidence tending to show an oral contract between George and his mother as to the sale and purchase of the 120-acre tract. George testified, over the objection of the plaintiff, as to the conversation between him and his mother and father, both now deceased, giving the terms of the oral agreement. Later Clem testified to substantially the same matters, saying that he did not hear the first conversation between his parents and George on this-subject, but did hear a later one and related it without objection. There could certainly be no good reason why Clem could not testify on this subject regardless of whether George was incompetent or not and the testimony of Clem was not contradicted by any one.
In the case of McCready v. Crane, 74 Kan. 710, 88 Pac. 748, it was held:
“A judgment rendered in a case heard without the intervention of a jury will not be reversed on account of the admission of incompetent evidence, unless the record discloses that there was no competent evidence to support it or in some other way shows affirmatively that the improper evidence affected the result.” (Syl. ¶ 1.)
Appellant also calls attention to some testimony of Clem as to a conversation between him and his father about a division of the half section between him and his brother. This does not seem to be material in the issues here involved and can safely be disregarded.
The next three headings in the assignments of error can be considered together. They are that the conveyances were fraudulently made as to the plaintiff bank, were without consideration and were voluntary. Appellant urges especially that the giving of the deed by George and wife to Clem for an undivided half interest in the father’s half section, the day after the death of the father, was deliberately for the purpose of fraudulently hindering and delaying the plaintiff, a creditor of George, from collecting its claim, and cites in the same connection the holding in Hardcastle v. Hardcastle, 131 Kan. 319, 291 Pac. 757, as to transactions between relatives being a matter that can properly be taken into consideration in determining the good faith of the transaction, and appellant insists that the same was voluntary on the part of George and that Clem was not suing George to collect an indebtedness, and cites pertinent authorities as to voluntary conveyances being more or less questionable under certain circumstances. The difficulty with this theoretically sound reasoning is in the fact that there was strong and positive evidence as to the indebtedness of George to Clem about which there was no conflict, and it was sufficient to support the finding of the trial court. And it apparently equaled the value of the land conveyed, taking into consideration the return deed from Clem to George for his half interest in the 120-acre homestead of George. Off the other hand, it is shown that Clem knew of the indebtedness of George to the plaintiff bank, and it is urged he cannot accept a deed from such a party and expect it to be good by closing his eyes to an intended fraud of the grantor.
All three of these alleged errors are confronted with the time-honored rule of the right of a debtor to prefer a creditor, if he does it honestly and not in excess of his indebtedness to the preferred creditor. Accepting the general finding of the court as to the indebtedness of George to Clem as fully supported, a preference was neither fraudulent nor voluntary. It was held in Arn v. Hoerseman, 26 Kan. 413;
“A debtor, even when financially embarrassed, even when in failing circumstances, has a right to prefer one creditor over another, and to pay such preferred creditor, or to convey property to him in satisfaction of the debt, or to mortgage property to secure the debt; but, of course, the. preferred creditor must act in good faith, and must not obtain more than is honestly and justly due him; and if he does so act in good faith, he does not become liable to any other creditor, although his act, with that of the debtor, may have the effect to wholly defeat the collection of all the other creditors’ claims.” (Syl. ¶ 2.)
Even when such preference is made in favor of a relative, it is sustained, as in Bank v. Tomlinson, 112 Kan. 274, 213 Pac. 830, where it was in favor of a wife.
Much evidence was introduced in the way of showing negotiations for a settlement with plaintiff which were partially approved before the execution of the deeds in question. This could have had a strong tendency toward convincing the trial court that no fraud was really intended, and even if it was intended by the grantor it does not usually or necessarily defeat the conveyance unless the grantee participated in such fraud. (Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890.)
We find no difficulty in approving the general finding of the trial court covering these three topics as to consideration, lack of fraud and that the deeds were not merely voluntary conveyances.
The last assignment of error is that the trial court failed to recognize that the lien of the plaintiff’s judgment, rendered against George in the foreclosure case on April 14, 1932, is carried back to the first day of the term by reason of the provisions of R. S. 60-3126, which would be the first Monday of March and was before the making of the deed on March 18 and before the death of the father on the 17th of March, and that the judgment thus became a lien on the land inherited. The first part of that statute does so provide, but the action on which plaintiff’s judgment against George was based was not commenced until plaintiff filed its cross petition in the foreclosure action on March 24, and the second clause of the above-cited statute makes the following exception to the general rule first stated:
“. . . but judgments by confession, and judgments rendered at the same term during which the action was commenced, shall bind such lands only from the day on which such judgment was rendered.”
Strictly speaking, this last feature concerns the judgment rendered rather than an error in procedure raised by a review of the hearing upon the motion for a new trial, but it is clearly not such a matter as should change the ruling of the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for divorce, plaintiff charging that the defendant was guilty of extreme cruelty, gross neglect of duty, habitual drunkenness and adultery. When the case was called for trial the defendant withdrew his answer and stated that he would contest only the plaintiff’s claim for alimony. Trial was had and a decree of divorce and alimony awarded plaintiff. The plaintiff appeals from the allowance of alimony, contending chiefly that the court erred in refusing to hear additional evidence showing the defendant’s aggressions. Also, that the court abused its discretion in its failure to make a larger allowance of alimony. It would serve no useful purpose to set out and analyze the evidence. (State v. Rose, 124 Kan. 37, 257 Pac. 731, and citations.) The plaintiff states in her brief that it supports the allegations of the petition as to habitual drunkenness, adultery, gross neglect of duty and extreme cruelty. Giving consideration thereto the trial'court stated, among other things:
“The evidence in this case, as examined and tested by the court, shows that these parties began life together without anything except, as Mr. Atherton for the plaintiff has said, good wholesome minds, willing hands and business ability. They were both working and for rather small salaries. They continued to work for some three or four years for about the same salaries they began with. During that time this plaintiff earned and contributed to the income of these parties a sum of money amounting, in round numbers, to $2,400. During the same time the defendant pursued the same line of work in which he was engaged at the time these parties were married, his earning capacity remaining about the same. After they had, as you might say, become settled in their business outlook, the father of the defendant saw fit to give him a better opportunity for his future, and gave him, instead of a salary, one-fourth of the income of the business, known as Newton Brothers (automobile business) here in Emporia. . . .
“If I am not mistaken, I have covered all the property, making in round numbers $60,000. As against this there is some $7,000 that defendant says he owes in an outstanding indebtedness. Mrs. Newton now has $1,500. She has the household furniture and a musical instrument, . . . worth about a thousand dollars. . . .
“In arriving at the present financial worth of the defendant the court has not made any allowance for shrinkage on the used car account, amounting to $20,000, as it appears from the evidence. Neither has the court made any allowance for shrinkage on bills receivable, amounting to $46,842 or a total of $66,842, and concerning which the defendant will suffer, a one-fourth loss. I do not think, however, that I can entirely overlook that contingency in determining on a division of their property. . . .,
“Mr. Huggins: In making whatever allowance you are making, does your honor take into consideration this man’s earning power and his income, as shown by the evidence, in addition to the present worth of his property?
“The Court: I am obliged to take that into account; otherwise the amount I am going to allow and charge against him as alimony would cripple him. That is to say, if his earning capacity simply made a living for him, to take out of it the amount I am going to allow would wreck the business, if he didn’t have the earning capacity to take care of this outlay. . . .
“I am going to allow the plaintiff ' . . . permanent alimony of $15,000. This is considerably more than one-fourth of all the defendant is worth, leaving the hazards of the business to him. The order will be that $5,000 of this is to be paid in cash, $5,000 to be paid September 1, 1928, and the remaining 85,000 on January 1, 1929. Fifty dollars per month for support money must be paid to plaintiff until the last dollar of this’alimony is paid. The amount allowed the plaintiff will be a lien upon the property of the defendant until the matter is fully discharged. The defendant will pay the costs of this action, and an additional fee of $200 for plaintiff’s attorneys.”
On the question of the excluded evidence it appears that such evidence was not offered by plaintiff on hearing of the motion for new trial. It may be again observed, as it has heretofore many times been repeated, that “error cannot be predicated upon the exclusion of evidence when such evidence is not brought into the record in conformity with the code.” (R. S. 60-3004.) (State v. Vandruff, 125 Kan. 496, 264 Pac. 1060; State v. Snyder, 127 Kan. 7, 272 Pac. 169; Sanford v. Chicago, B. & Q. Rld. Co., 127 Kan. 83, 272 Pac. 151.)
On the question of the allowance of alimony to the wife, the statute provides that she “shall be allowed such alimony as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce.” (R. S. 60-1511.) The determination of the amount of alimony is controlled by no fixed standard.
It has been repeatedly said that the trial court has wide discretion in allowing alimony and that its exercise of that discretion, unless clearly abused, will not be disturbed on appeal. (Leach v. Leach, 46 Kan. 724, 27 Pac. 131; Johnson v. Johnson, 66 Kan. 546, 72 Pac. 267; State v. Foren, 78 Kan. 654, 97 Pac. 791; Miller v. Miller, 97 Kan. 704, 156 Pac. 695; Danielson v. Danielson, 99 Kan. 222, 161 Pac. 623; Miller v. Miller, 113 Kan. 22, 213 Pac. 634; Currie v. Currie, 114 Kan. 37, 216 Pac. 1083.)
In the instant case we are unable to say that the trial court abused such discretion.
Other questions argued in the briefs require no discussion. We find no error.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover from a school-district board upon a teacher’s contract on account of the breach thereof by the board.
The written contract appears to be in the usual form, and a copy thereof is attached to the petition. The petition alleges certain oral agreements as modifications thereof or additions thereto, some said to have been made prior to the execution of the written contract and some subsequent. The defendant board, after its demurrer to the petition had been overruled, filed an answer, which was a general denial and a special denial to the effect that the written contract was void, ultra vires, contrary to the statutes and of no effect. The trial court heard the evidence and rendered judgment for the plaintiff for the year’s salary, from which judgment the defendant board appeals after the overruling of its motion for a new trial.
The most serious and almost exclusive legal question involved is tíre validity of the written contract. The beginning of the contract is in the following words:
“It is hereby agreed, by and between school district No. 134, county of Elk, state of Kansas, and Miss Verna Buchanan, the holder of a county certificate, t.hip day in force . . .”
In- the body of the contract the following sentence is contained:
“It is also provided that in case said teacher shall be legally dismissed from school or shall have her certificate legally annulled, by expiration or otherwise, then said teacher shall not be entitled to- wages from and after such dismissal or! annulment.”
The contract was executed April 12, 1932, and covered the school year.of ..eight months, beginning September 5, 1932.
It 'is alleged in the petition that at. the time the contract was executed the plaintiff- possessed the necessary educational qualifications to teach,' govern and conduct the public school, but at that time had not taken the examination for a county certificate, of which said defendant was duly apprised at the time and prior to the execution of said- contract. The evidence, unquestionably shows that all the members of the board knew beforp signing'the contract that the plaintiff did not have a county certificate and. were- informed that she intended to take the county examination on Juné 24 and 25 for the purpose of procuring such certificate.
Plaintiff cites the case of Moon v. Moon, 102 Kan. 737, 173 Pac. 9, in support of her contention that the statement in the contract as to the plaintiff being the holder of a county certificate this day in force is a formal statement, a mere recital, subject to modification. It was held in that case that Charles Moon did not own a one-fourth interest in the property as stated in the contract, but the contract was held void for want of consideration, and it was stated in the opinion:
“Estoppel is now a matter of substantive law, and a recital in a contract is not conclusive unless it operated as a representation or warranty inducing the formation of the contract, or was itself of the essence of the contract. . . .” (p. 740.)
The holding of a county certificate would seem to be very much of the essence of this contract to teach, not only from the recital at the beginning of the contract, but also from the provision in the body of the contract, both of which are quoted above.
R. S. 72-1026 seems to limit the parties with whom school boards may make written contracts to “qualified teachers” by using the following language:
“The district board in each district shall contract with and hire qualified teachers for and in the name of the district, which contract shall be in writing, and shall specify the wages per week or month as agreed upon by the parties, and such contract shall be filed in the district clerk’s office; and, in conjunction with the county superintendent, may dismiss for incompeteney, cruelty, negligence or immorality.”
Plaintiff insists that such requirements are fully met by one possessing the required amount of education, but it is difficult to reconcile this theory with the requirements of other sections. R. S. 72-1320 provides that—
“. . . said board of examiners shall issue certificates, as by law provided, to all such applicants as shall pass the required examination and satisfy the board as to their good moral character and ability to teach and govern schools successfully.”
R. S. 1933 Supp. 72-1326 provides that—
“A certificate issued under this act may be revoked by the board of examiners of the county- in which said teacher is teaching on the ground of immorality or for any cause which would have justified the withholding of the certificate when it was granted.”- ■
R. S. 72-1350 provides for the registration of all such certificates, and R. S. 72-1351 is as follows:
“It shall be unlawful for any district board, board of education or board of trustees of a county high school to issue an order for payment of the salary for services as teacher of any holder of said certificate, diploma or other docur ment unless said holder present a certificate of registration as provided for in section 2 of this act.”
This contains a penalty which answers the argument that the qualification requirement is directory only and not mandatory.
The case of Strange v. School District, 132 Kan. 268, 295 Pac. 672, is cited by the appellant, and, eliminating the elements of fraud and misrepresentation, the situation is very similar. The contract in that case was held to be void, but the ruling was based largely, if not entirely, upon the fact of fraud and misrepresentations as to holding a certificate. Here we have no element of fraud and. absolutely no .misrepresentations, because every member of the board knew that the plaintiff did not have a teacher’s certificate at the time, the contract was executed, but it is a statutory requirement that they contract with qualified teachers. We have been shown no authority for the board to contract with others. The necessity of a teacher's certificate is classed along with other statutory licenses of professions, trades or business. It is said in 13 C. J. 423:
“Where a license or certificate is required by statute as a requisite for one practicing a particular profession, an agreement of a professional character without such license or certificate is ordinarily held illegal and void. This is i.rue, for example, of an agreement made. by an unlicensed or uncertified physician, an attorney at law, a conveyancer, an engineer, or a schoolteacher. The authorities are in accord on this point, where the license is required for public protection and to prevent improper persons from acting in a particular capacity and not for revenue purposes only.”
It is also said under the heading of “Schools and School Districts,” in 56 C. J. 370:
“Generally, under the statutes, it is a prerequisite to an applicant’s appointment or employment as teacher or principal or superintendent, or to his recovery of wages under his contract, or damages for its breach, that he have in his possession or file with the proper board or officer a license or certificate of his qualifications, as prescribed by law, which certificate must be of the requisite class, and the necessity exists regardless of what his other qualifications for employment as a teacher may be. The requirement is statutory, not contractual, and it cannot be waived or dispensed with ...”
The following cases from other states are cited for our consideration: Tate v. School District, 324 Mo. 477, 23 S. W. 2d 1013; Schafer v. Johns, 23 N. D. 593, 137 N. W. 481; and Hots v. School District, 1 Colo. App. 40.
In the Tate case it was held to be “a proper and reasonable construction of the statute” not to require the teacher to have at the time of signing the contract a certificate covering the entire period of employment, although the statute required it to be in force for the full time for which the contract is made.
In the Schafer case the statute provided that “no person shall be permitted to teach,” etc., and the contract was held to be good when the teacher procured a certificate before school began. The Hotz case involved an implied contract based upon a temporary certificate.
24 R. C. L. 616, cited by appellee, is to the effect that the authorities are not agreed as to the question of the time when the teacher must have his certificate and refers to the above-cited cases, but the preceding section states the general law to be as follows:
“There are statutes in many jurisdictions providing that persons teaching in the public schools must be holders of teachers’ certificates, and the question has frequently arisen as to the effect of a contract made by a board with a person not so qualified. Such provisions may be neither waived nor dispensed with, and it has been held broadly that the possession of the certificate is a necessary prerequisite to appointment or employment, and that any contract made with a teacher not having such certificate is void so as not even to be susceptible of ratification.” (See, also, Bourbon County Comm’rs v. Miller, 132 Kan. 52, 294 Pac. 863.)
Other questions were presented in the briefs as to the admission of evidence concerning matters occurring before and after the execution of the contract and concerning the taking of a second examination and ultimately receiving a certificate, but because we consider the contract itself void for the reason the plaintiff was not the holder of a certificate at the time the contract was executed, no useful purpose can be served by a discussion of these other matters.
The judgment is reversed.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an attempt to appeal from a decision of the district court in a proceeding for the recovery of compensation under the recently enacted workmen’s compensation act (chapter 232 of the Laws of 1927).
Elmer Norman, an employee of the Consolidated Cement Company, was accidentally injured in the course of his employment and made a claim for compensation. Both parties were within the provisions of the act. The company had notice of the injury within ten days of the accident and a written claim for compensation was made within ninety days in accordance with the provisions of the act. jThe claim was duly presented to the commissioner of workmen’s compensation, who set it down for hearing at a fixed time before an examiner duly appointed for that purpose. Upon the evidence submitted by both parties it was determined that Norman had sustained an accidental injury causing a stiff knee joint by reason of which he was suffering a fifty per cent permanent partial loss of the limb. It was decided that Norman was entitled to an awafd of $15.15 per week for one hundred weeks, amounting to $1,515, which was accordingly made, of which sum $330.30 should be paid at once and the balance paid in weekly installments of $15.15 until the full amount had been paid. An award was made to a doctor for medical services rendered to Norman, and also there was an approval of a contract for legal services by Norman’s attorney for twenty-five per cent of the award. The findings of the examiner were approved by the commissioner of the workmen’s compensation act. In due time and in the manner provided by the act both parties appealed from the award to the district court, and upon a transcript of the evidence taken before the commissioner, the district court reviewed the findings, rulings and award of the commissioner. On this appeal the district court held that Norman had suffered a permanent and total loss of the use of his leg, and was entitled to sixty per cent of his average weekly wages, amounting to $3,030, payable as follows: $606 at once, the balance to be paid at the rate of $15.15 per week until the whole of the sum awarded is paid. The other awards made, including medical services, costs and expenses were approved except as to the amount for legal services, which was* increased to $500. The company seeks to appeal from the rulings of the district court upon the assigned grounds that they are not sustained by the evidence and are contrary to law. Norman, the claimant, moves to dismiss the appeal on the ground that the compensation act which dealt with the subject of appeals does not provide an appeal from the rulings of the district court on awards of compensation to workmen, and that the supreme court is therefore without jurisdiction to review such rulings. •
The company contends that while the act does not in terms provide for an appeal to the supreme court, the provisions of the civil code relating to appeals are applicable in this ease. The decision of the district court; it is contended, was a final order and the code provides for an appeal and a review of all final orders of the district court. (R. S. 60-3302.) On the other hand, the claimant contends that the compensation act is comprehensive and complete, in which the legislature has prescribed the procedure governing all proceedings in compensation cases, including appeals, and it chose to grant a limited appeal only to the district court. The section of the compensation act relating to appeals provides:
“Any party to the proceedings may appeal from any and aE decisions, findings, awards or rulings of the commission to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by. a transcript of the evidence and proceedings as presented, had and introduced before the commission. And on any such appeal the district court shall have jurisdiction to grant or refuse compensation or to increase or diminish any award of the commission as justice may require. Such appeal shall be taken and perfected by the filing of a written notice of appeal with the commission within twenty (20) days after the decision, finding, award or ruling appealed from shall have been made and filed by the commission, and the secretaiy of the commission shall immediately after the filing of such notice transmit a certified copy of such notice to the clerk of the said'district court, who shall docket said cause for' hearing as in other cases on appeal.” (Laws 1927, ch. 232, § 42.)
We conclude that this court is without jurisdiction to review the decision of the district court. The act is an elaborate one which provides compensation for workmen accidentally injured in the course of their employer’s trade or business, if it be one of the hazardous employments defined in the act. It provides an elective system and is made applicable only to those who choose to come within its operation and the compensation awarded those within the act is regarded to be a substitute for damages recoverable in a civil action, and is exclusive of all other remedies or causes of action for the injury or death of the workmen. It provides for medical, surgical and hospital treatment and care of injured employees to be furnished by the employer with certain limitations as to the cost of the same; provides for- allowances to dependents of the employee where death results and in all cases of death the employer is required to pay burial expenses not exceeding a sum fixed by the act. After prescribing what shall constitute a right to compensation, the legislature in great detail scheduled the amounts to be paid for the loss of members of the body, including fingers, toes and phalanges of the same, likewise of hands and feet; also, for the loss of an eye or sight and hearing, together with hernia. As to injuries or disabilities not scheduled the legislature prescribed rules for measuring the amount of compensation, the length of time during which payment shall be made, the amounts to be fixed by the wages previously earned by the employee, and prescribed a minimum and maximum of the amounts to be allowed. After' an injury the employee is required to submit to an examination by physicians or surgeons selected by the employer with certain restrictions and it provides rules regulating the admission of the testimony of the physicians ór surgeons, who make examinations. Provisions are made as to the notice to be given an employer of an injury to an employee and the time within which compensation shall be claimed. That claims may be settled and if not agreed upon the claim may be submitted to an arbitrator agreed upon by the parties, but where there is no agreement or arbitration, the claim is to be submitted to the public service commission, which shall hear and determine all the questions in accordance with certain prescribed procedure, which is quite inconsistent with the rules prescribed in the civil code. It is provided that those hearing the matter shall not be bound by technical rules of procedure, but shall give the parties reasonable opportunity to be heard and to present evidence. (Laws 1927, ch. 232, § 23.) The forms for the claim, the findings and award are prescribed, and prompt hearing and speedy finding and award by the commission are required. There is a provision for a review, modification or cancellation of the award by the commission upon specified grounds at any time before final payment is made. Provision is also made that an application may be made to the commission by the employee for payment of the award in a lump sum because of doubt as to the security for his compensation and the commission, if satisfied that the payment of the award is in doubt as to security, shall grant the application unless satisfactory security is given. If the application be granted a certified copy of the award may be- filed with the clerk of the district court and judgment may be entered according to the terms and provisions of the award upon ten days’ notice to the employer. There is a provision, too, by which prospective payments of an award may be made in a lump sum, which when made shall operate as a discharge of the employer from all further liability. Rules are prescribed as to the duties of the examiner and the commission in hearings giving power to administer oaths, take depositions, compel attendance of witnesses, as well as the production of books, accounts, papers, documents and records, and also as to the manner in which records of all proceedings of the commission shall be made and preserved. If an appeal is taken to the district court, as we have seen, it is limited to a review by that court upon questions of law and fact as presented and shown by the transcript of the proceedings before the commission, and this transcript is to be furnished without cost to the parties appealing. Among other things, the act provides that the right to compensation shall accrue at the time of the accident. Provision is made that a scheme of compen sation benefit or insurance may be agreed upon by the parties with the approval of the attorney-general, which shall be substituted for that prescribed in the act, and which shall be carried out under rules required by the superintendent of insurance. Another provision is that if an action is brought to recover damages for a personal injury by an employee entitled to come within the provisions of the act in which a recovery is sought on the ground of the want of due. care of the employer, where such employer is within the provisions thereof, it shall not be a defense to any employer who has elected not to come within the provisions of the act that the employee assumed the risk of the hazard, that the injury or death was caused by want of due care of a fellow servant or that such employee was guilty of contributory negligence. A further provision is that if the employee who was entitled to come within the provisions of the act brought an action to recover damages for injury upon the ground of want of due care of the employer and where the employer at the time of the accident is operating under the provisions of the act, it shall be a defense for such employer in all cases where the employee has elected not to come within the act, that there was assumption of risk by the employee that his death was caused in whole or in part by want of due care of a fellow servant, and that the employee was guilty of contributory negligence. It is added that none of these defenses shall be available where the injury was caused by the willful negligence of the employer. Provisions are made regulating insurance against the liability of employers, the rates for insurance and the revocation of license of insurance company for failure to pay awards finally determined to be due.
This summary of the compensation act shows that the functions of the commission to which is committed the carrying of the provisions of the act into effect, are those of an administrative body vested, it is true, with some powers that are quasi judicial.- In no sense can it be regarded as clothed with the powers and functions of a court. It has been said of a similar tribunal that:
“The industrial accident board is not a court of general or limited common-law jurisdiction. It is purely and solely an administrative tribunal, specifically created to administer the workmen’s compensation act with the assistance of the superior court.” (Levangie’s Case, 228 Mass. 213.)
In Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, the court said of the functions of such a commission:
“This board was created purely as an administrative agency to carry the provisions of the act into effect. The act being elective, it is operative only as to those who choose to come within its provisions, and in that particular it is a board of arbitration by agreement, but, aside from that consideration, it is but an administrative body, vested it is true with various and important duties and powers, some of them quasi judicial in their nature, but without that final authority to decide and render enforceable judgment, which constitutes the judicial power. Its determinations and awards are not enforceable by execution or other process until a binding judgment is entered thereon in a regularly constituted court. . . . We conclude that the industrial accident board is a ministerial and administrative body with incidental quasi judicial powers exercised by consent of those electing to be governed by the act, not vested with powers or duties in violation of constitutional limitations.” (pp. 18, 20.)
'The Kansas act, unlike that of many other states, provides for the administration of compensation by a commission instead of a court. In some of the states the powers to find and determine the compensation to be paid and the enforcement of the award are largely conferred upon designated courts. (2 Snyder on Workmen’s Compensation, 1485.) With the exception of the limited review in the district court, the adjustment of compensation claims in this state is vested in the commission, an administrative tribunal. The provisions for compensation to be obtainable in a quick, easy and inexpensive way are a radical departure from the recovery of damages for injuries to workmen in ordinary common-law actions. The manifest purpose was to provide a simple and summary remedy complete within itself for industrial accidents, making the loss a charge upon the business or industry. It is deemed to be based on an obligation of a contractual nature and to be enacted -for the benefit of the employer and the employee. Of its purpose and scope it has been said:
“Iu the enactment of the compensation law, the legislature recognized that the common-law remedies for injuries sustained in certain hazardous industries were inadequate, unscientific and unjust, and therefore a substitute was provided by which a more equitable adjustment of suoh Ices could be made under a system which was intended largely to eliminate controversies and litigation and place the burden of accidental injuries incident to such employments upon the industries themselves, or rather upon the consumers of the products of such industries. The court has already determined that as to employer and employees who elect to come within the provisions of the compensation law the law itself becomes a part of the contract of employment and both are bound by its provisions. It was further determined that as to them the remedy afforded by the law is substitutional rather than supplemental or cumulative, and therefore exclusive.” (McRoberts v. Zinc Co., 93 Kan. 364, 366, 144 Pac. 247.)
In a comprehensive statute the legislature manifestly undertook to cover every phase of the right to compensation and of the procedure for obtaining it. It provided an administrative method in order to avoid the delay resulting from prolonged litigation and the uncertainty and expense attending it. Another feature is that when both parties unite in this plan to adjust compensation it tends to prevent friction and hostility between employers and employees that frequently arise in actions based on negligence of the parties. The substituted remedy being complete with a procedure of its own, it must be regarded as exclusive. It being substitutional and complete and exclusive, we must look to the procedure of the act for the methods of administration. We are not warranted in borrowing rules and methods from the civil code not included in the act itself, methods prescribed for ordinary civil actions which the legislature for obvious reasons was seeking to avoid, and for which it provided a substitute. If an appeal were to be taken under the provisions of the civil code it would result in delay and expense, the very thing the legislature was seeking to prevent by the substitution of a new and different system. If there were an appeal to this court it might result in a decision requiring a retrial of the matter in the district court, and from the second decision of that court there might be a second or successive appeals, which would cause great delay and expense. Meantime the injured workman would be without relief. • Such delay, uncertainty and expense would operate to thwart the evident purpose in the enactment of the new system. More than that, the legislature had under consideration the subject of review of the findings and awards of the commission, and it provided for a limited review in the district court. Having dealt with the subject of appeals, it is inferable that no different or other appeal was intended to be given by the legislature. The one specifically authorized in the new system is exclusive and the decision of the authorized appeal is necessarily the end of the proceeding. The legislature had the power to allow an appeal to a tribunal and to limit it to a particular one. The only appeal provided .for is the one to the district court, and this court cannot well broaden the act by adding another. It has been determined that there is no vested right in an appeal, and appeals which had previously been allowed may be limited by later legislation or entirely withdrawn. (Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114; Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539.)
It is argued that the right to appeal to this court has been recognized in condemnation and drainage cases as well as some others, but in none of those acts did the statutes substitute new and distinct remedies with a procedure of their own as in the act under consideration. Attention is also called to the fact that decisions of the district court have been recognized and entertained under the old compensation act in this court. That act, however, has been repealed and besides many of the duties arid powers to be exercised relating to compensation were vested in the district court. (See R. S. 44-512, 44-516, 44-522, 44-523, 44-528, 44-530, 44-533.) In the last section cited it was provided that matters committed to the district court should be construed as relating to the existing code of civil procedure. While some of the provisions of the old act are incorporated in the new one, that provision was carefully eliminated from the latter. To quite an extent in the old act its provisions were to be administered by the court instead of a commission. Aside from these considerations the question of the right of appeal to this court under the old act was never presented, and therefore never determined. In view of the purpose of the present act, by which the legislature created a new system substituting a simple summary and inexpensive remedy for industrial accidents with a special procedure, quite unlike that of the civil code, which was appropriate for ordinary civil action for relief for accidental injuries, and further that in the act it treated the subject of appeals and restricted it to a limited appeal to the district court, we are constrained to hold that that appeal is exclusive and that this court cannot force this proceeding into the general code provision providing for appeals in civil actions and therefore there is no jurisdiction to entertain this appeal.
It follows that it must be dismissed. It is so ordered.
Dawson and Harvey, JJ., dissenting.
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The .opinion of the court was delivered by
Smith, J.:
This was a proceeding in garnishment. Judgment was for the plaintiff. The garnishee appeals.
The plaintiff recovered a judgment against Verne Combs on account of injuries sustained in an automobile collision. The plaintiff was unable to collect the amount of this judgment by execution and caused a summons in garnishment to be issued against appellant. The Home Indemnity Company of New York, the garnishee, answered that it owed the defendant nothing. The plaintiff elected to take issue on the answer of the garnishee. The court heard the parties on the question of whether garnishee was indebted to the defendant, and found in favor of the plaintiff. Judgment was entered directing the garnishee to pay to the clerk of the court the amount of the judgment obtained by plaintiff against defendant, together with costs, including an attorney’s fee.
The case arises out of an insurance policy taken out by the father of defendant upon a Ford eoupé. The father of defendant operated a filling station. At the time of the automobile wreck, out of which this case grew, defendant was between seventeen and eighteen years of age and lived at home with his father and mother. The Home Insurance Company of New York and the Home Indemnity Company of New York issued a combined automobile policy to W. D. Combs, the father of defendant, on the automobile in question. He was not a party to any of these proceedings. The policy of the two companies is all one document and each company has the same home office, the same president and the same local agent. The part of the policy issued by the Home Insurance Company insured the automobile against fire, theft, damage by tornado and like hazards. The part issued by the Home Indemnity Company, appellant here, agreed within the limits specified in the statements to insure against any loss by reason of liability imposed by law upon the assured for bodily injury or death, or any loss by reason of liability for damages or destruction of property of others. Under the general provisions of the policy the assured was required to give prompt notice upon the occurrence of an accident and nature of any claim on account thereof. The policy also contained a clause known as an “omnibus coverage.” As far as we are concerned in this case, this clause provided that the policy would insure, in the same manner and under the same conditions as the-assured named in the policy was insured, any other person legally responsible for the operation of the car if such operation was with the permission of the assured or if the named assured was an individual, with the permission of an adult member of the assured’s household. The defendant was operating the car in question with the permission of his father and on business of his own at the time of the injury of plaintiff. As has been stated, plaintiff recovered judgment against defendant and was unable to collect it by execution.
Appellant does not contend but that the judgment is correct provided it be held that the car belonged to the father and certain conditions of the policy were complied with.
There were no pleadings in this case other than the affidavit in garnishment and the answer of the garnishee, together with the election of the plaintiff to take issue on the answer of the garnishee.
It was the first contention of the garnishee in the trial court that the automobile in question was the property of defendant, not that of his' father. If the court had found this to be the fact then it is argued judgment would of necessity have been for garnishee since the policy in question had been issued to the father, and not the son, and the car was not being used in the business of the father when the injury to plaintiff occurred. The judgment of the trial court in favor of plaintiff and against the garnishee carries with it every finding of fact necessary to sustain that judgment.
Appellant first argues in this court that there was no evidence to sustain this finding. Mr. Combs, the father of defendant, was dead at the time of the hearing, and the defendant was not called. The fact of ownership of the car had to be determined by circumstantial evidence. There was evidence on both sides of this question, and when the trial court entered a- judgment that depended upon a certain finding of fact on contradictory evidence that ended the matter. Briefly, that evidence was as follows: The father bought the car. He paid part cash and gave a note secured by a mortgage for the balance. The father took out the policy in question. He stated to the companies when taking out the policy that he was the assured, and the car would be used for business and pleasure. The car was kept in the garage belonging to Mr. Combs and the gas and oil used in it were charged to Mr. Combs. The car was wrecked during the time that a policy similar to the policy in question was in effect. The repair bill was charged to Mr. Combs. The mechanic’s lien was filed against Mr. Combs and the agent of the Home Insurance Company paid the bill. A similar repair bill a few months later was handled in the same way. On the morning of the injury to plaintiff defendant asked permission of his father to use the car in going to a football game. The father said “O. K.”
To meet this evidence the garnishee offered the, testimony of the insurance agent that Mr. Combs said when he took out the policy that he was buying his boy a car and was going to let him pay him back by working around the filling station. Garnishee also introduced copies of the application for a license wherein defendant stated that the car was his. As far as the testimony of the insurance agent is concerned it may very well be that the trial court did not believe it. If that be the case, then the only evidence in this record pointing to ownership of the car in defendant rather than his father is the- copy of the application for a license signed by the defendant in which he said the car was his. As this state of the record leaves us, then our story opens with the car belonging to the father as evidenced by the note and mortgage signed by him. The record is devoid of any evidence whatever, even circumstantial, that the father ever did anything to divest himself of ownership of the automobile.
The garnishee argues that the record does not show that the insured complied with the clause in the policy which provides that the company should be notified of the occurrence of an accident, and that in case of suit the insured should forward every summons and other process served upon him. The fact is that the clause provided that notice to the agent of the company would be good. There is ample evidence that the attorney who represented the defendant in the damage case notified the agent for garnishee of the suit and had several conferences with him about it before it came to trial.
The garnishee next argues that the court erred in admitting the evidence of the repair man who repaired the car in question at a time about a year prior to the happening of the accident out of which this action grew. This witness testified that the car was wrecked; that he repaired it; charged the bill to the father; filed a mechanic’s lien against the car; gave the name of the father as owner and was paid by the agent of the garnishee, who it has already been stated was also the agent for the Home Insurance Company, the other company named in the policy upon which this action is based. The garnishee argues that this evidence should not have been admitted because it concerned a transaction with a company other than garnishee and at a time other than during the term of the policy in this case. The fact is that this company .is named in the same policy in which garnishee is named and the policy sued on is merely a renewal of one that was in effect when the wreck occurred about which the repair man testified. The provisions as to ownership of the car applied to both companies alike. The fact the company that had insuz’ed against damage to the automobile paid the repair bill and that the lien was filed against the car, with the father as owner, is a circumstance entitled to some weight on the question of who owned the car.
The garnishee argues that the court erred in refusing to consider its requests for findings of fact and conclusions of law. These requests were not made at the conclusion of the trial. They were not made until about twenty days thereafter at the time that had been fixed for the filing of briefs. ■ The record does not show that the court failed to consider them. All it shows is that the court failed to make them. As has been heretofore demonstrated in this opinion, this was not error.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.;
Appellant was charged, tried and found guilty of the larceny of sixty bags of cottonseed cake, of the value of $135. He has appealed, and contends: The court erred (1) in the reception of evidence, (2) in submitting the case to the jury, and (3) in the instructions given.
Briefly, the facts shown by the evidence, which the jury was entitled to believe, may be stated as follows: Hill was a farmer, and had some livestock, and resided in the southern part of Lyon county. The Browning ranch was about twenty miles to the south, in Greenwood county. In wintering cattle on the ranch cottonseed cake was fed. This was stored in a barn about one hundred yards from a highway. Homer Applegate, who had previously served time for larceny, and Frank, his brother, had known Hill about six months. Hill met them at Emporia one day in December, 1934, and told them he could use some cottonseed cake or corn chop at one dollar a sack. They said they would try to get it for him. He knew how they would get it if they sold it to him at that price. A few days later they went out near Virgil and stole eights sacks of feed, which they delivered to Hill and for which he paid them one dollar per sack. Ross Finnemore, who had a j ail record for misdemeanors, went with Homer and Frank Applegate to Hill’s place January 5 or 6, and Homer told him they could get him some more feed, and Hill said he could- use it. For some reason they could not get the feed that night and went back after night and reported to Hill. The afternoon of January 9, 1935, Finnemore and Homer Applegate went to Hill’s house and talked with him further about getting the cake. Homer asked how much he could use and Hill said as much as 200 sacks. That night Homer and Frank Applegate, Ross Finnemore and a negro, Bill Holt, went to the Browning ranch in two Model T Ford cars, a coupé and a coach, which they parked in a meadow west of the barn. They went to the barn, where there were about 200 sacks of cake, and carried sixty sacks out to the highway and piled them on the grass; then got their cars, loaded thirty sacks of cake on them and drove to the Hill place, reaching there about 3 o’clock in the morning. Hill helped to unload the sacks of cake and put them in his barn, being carful to remove the identifying tags from the sacks. They told Hill about the other thirty sacks out by the road and said they didn’t know whether they could get them and get back before daylight. Hill told them it would not hurt anything if they got there after daylight. Hill furnished some gas and oil for one of the cars. They went and got the other thirty sacks and brought them to Hill’s place after daylight. He helped them unload, as before, being careful to remove the tags. He paid them $45 in cash and later in the day $15 by check. The cake was worth more than twice that amount.
The next morning A. R. Freeman, the tenant on the Browning ranch, noticed the cake was missing and where it had been piled in the grass. N,ear there he found a leather suede jacket with the name “Ross Finnemore” written on it. He notified Mr. Browning, the sheriff was called, and in a few days Ross Finnemore was arrested. He told all about it. When charged with the offense he pleaded 'guilty. He testified for the state at the preliminary examination and trial of Hill. Homer Applegate also testified for the state at Hill’s preliminary examination, and was called as a witness on the trial, when he refused to testify on the ground that it might incriminate him. In the meantime he had been tried on the charge and found guilty. At his own trial he had taken the witness stand and repudiated a part of the testimony he gave at Hill’s preliminary examination. When he refused to testify at the trial of Hill the state offered in evidence his testimony given at Hill’s preliminary examination, and the defense offered his testimony given at his own trial; both were admitted.
Turning now to the questions argued by appellant: (1) That the court erred in admitting testimony. It is contended Finnemore should not have been permitted to testify because he was an accomplice. The court properly instructed the jury as to such evidence. Its weight was for the jury. The point is not good. (State v. McDonald, 107 Kan. 568, 193 Pac. 179; State v. McIntyre, 132 Kan. 43, 48, 294 Pac. 865.) It is argued it was error to use Homer Applegate’s testimony given at the preliminary hearing in view of his repudiation of it at his own trial. The repudiation went to only a few questions. The jury heard both versions and was in position to pass upon the credibility of the witness in the two statements, and the weight to be given all his testimony. (2) It is contended the evidence was insufficient to sustain the conviction. This point is not well taken. The state never contended Hill was personally present at the Browning ranch, and actually helped carry the cake from there. It contended he aided and abetted in the larceny, and charged him as principal, which was proper. (State v. Eyth, 124 Kan. 405, 260 Pac. 976.) (3) It is argued the court erred in the instructions given. This is largely a play upon words. The statute (R. S. 62-1016) says: Any person who “counsels, aids or abets” may be tried, etc., as a principal. The court said: Anyone who “knowingly aids, abets, or assists ... in any way” would be guilty as principal. The'objection is to the use of the words “assists,” and “in any way.” To assist means to aid, and in a sense was a harmless repetition. It was not error to use the words “in any way” for the statute does not discriminate between different ways one may counsel, aid, or abet in the commission of crime.
We 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
Dawson, J.:
This was an action on a nonnegotiable promissory note for $350 payable to the order of the plaintiff corporation.
The principal defense pleaded to the original petition was want of consideration. In an amended petition plaintiff joined with itself some eight of its stockholders who were members of its board of directors, and alleged that defendant was also, a stockholder in the plaintiff corporation, and that in 1921 the corporation was deeply in debt, and that at a meeting of the stockholders it was decided that the board of directors might borrow $17,500 on their personal obligations and place that sum to the credit of the plaintiff to enable it to carry on its corporate business, and that each of the stockholders would execute his separate promissory note for $850 to guarantee the board of directors against personal loss. The amended petition also alleged that defendant was present at that stockholders’ meeting and participated therein, and pursuant thereto he executed and delivered the note sued on; and that on the faith of the proceedings at the stockholders’ meeting and the stockholders’ notes given in accordance therewith the $17,500 was borrowed by the members of the board of directors on their personal credit and turned over to the plaintiff corporation, following which the corporation incurred losses which caused its insolvency and subjected the directors to personal liability and loss amounting to $15,750.
Defendant moved to strike the amended petition from the files on various grounds—
“First. That said amended petition set up an entirely new and different cause of action; that said amended petition has changed the original cause from an action by the plaintiff, to- recover upon the promissory note set out in the original petition, in its own right, while the amended petition predicates a right to recover upon another and entirely different cause of action.
“Second. Because a change of the real plaintiffs as set forth in the original petition has been made by substituting other parties as the real plaintiffs, without leave of court having first been obtained.”
Defendant likewise demurred to the amended petition on the ground that it did not state a cause of action, and that the cause of action which it did attempt to state was within the purview of the statute of frauds.
Defendant’s motion and demurrer were overruled and he then answered admitting his execution of the note for the use and benefit of the plaintiff corporation, but alleged that at the time of its execution and delivery he was not indebted to plaintiff, nor to its officers or agents, and that the note was wholly without consideration.
On this joinder of issues a jury was waived and the cause was submitted to the trial court upon an agreed statement of facts which substantially conformed to the pleadings as above summarized. Judgment was entered for plaintiffs and defendant appeals.
. Defendant begins his argument by asserting that his plea of want of consideration was a perfect one, and that it was error to overrule his motion to strike the amended petition from the files. On the contrary, the amended petition merely related facts which could have been pleaded in reply to the defense of want of consideration. The inclusion of the members of the board of directors as parties plaintiff was unnecessary but not improper, for the reason that when a corporation is being liquidated for insolvency the members of its last board of directors are ex officio its trustees to wind up its corporate affairs, and the collection of this note was a necessary incident thereto. (R. S. 17-808; State v. Copelman, 110 Kan. 749, 205 Pac. 360; Wright v. Sutton, 122 Kan. 771, 773, 253 Pac. 225.) In any event, the joinder of unnecessary parties does not change the cause of action, and it is ordinarily immaterial whether additional parties to an action, or even original parties, be designated as plaintiffs or defendants. (Minch v. Winters, 122 Kan. 533, 540, 253 Pac. 578.)
The point is urged that the note was not the property of the corporation. It is not clear why this contention is made, but assuming its correctness, the fact was of no importance, since the corporation was the designated payee and title holder. It is familiar law that a nominal payee, or nominal title holder, although he has no beneficial interest, may maintain an action on a promissory note. (Berridge v. Gaylord, 108 Kan. 105, 106, 193 Pac. 1066; Goebel v. Anderson, 123 Kan. 211, 255 Pac. 77; 1 Ann. Cas. 833 note; 3 R. C. L. 991, 992.)
It is next argued that the stockholders could not be held for the debts of the corporation. Very true; but the stockholders could mutually agree to contribute money, credit, or their several promissory notes for $350 or any other amount, in an effort to rehabilitate the financial standing and continue the corporate life of the institution in which each of them held a,shareholder’s interest. And that is precisely what was done in this case. And it is also familiar law that mutual obligations of that character are valid and enforceable. In the analogous case of Farmers Equity Coöp. Ass’n v. Tice, 122 Kan. 127, 251 Pac. 421, it was said:
“The defendant was a stockholder in the plaintiff association and interested in its welfare and progress. He was interested in seeing that its business was carried on. The execution by the other stockholders of their notes for the ' benefit of and to aid the company in which the defendant was interested was a valuable consideration for the execution of his note.”
It is argued that there was a want of mutuality of obligation between the corporation and defendant, and also between'the members of the board of directors and defendant. That is beside the point. The requisite mutuality of enforceable obligations existed between the several stockholders who upon their own unconstrained initiative gave their notes for $350 each for their own ultimate mutual advantage. Obligations so created are enforceable by the third party for whose benefit they are undertaken. (Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12.) Defendant contends, however, that plaintiffs failed to plead and to prove that the other individual stockholders had assumed their respective shares af the burden of these mutual contributions to the common cause. A critical examination of the amended petition does not disclose a precise allegation to that effect, although it may be inferred therefrom; but, as we have already said, the matter included in the amended petition might all have been shown by evidence in support of the original petition, and particularly so to meet and overcome a defense based on want of consideration. However, the agreed statement of facts serves the purpose of both pleadings and evidence, and in paragraph five of the agreed statement it is stipulated — ■
“That the note in suit was executed and delivered to said corporation on the same day, to wit: April 18, 1921, together with others, and by it held until about the time of the commencement of this action. That at the time of the execution and delivery of said note, defendant knew of the passage of said resolution.”
It is also urged that the plaintiff’s pleadings fail to allege that any money was borrowed by the board of directors and placed to the credit of the corporation in consequence of the giving of defendant’s note and similar notes of other stockholders. We think that fact was sufficiently alleged, if an allegation of that fact was necessary. It is specifically covered in the agreed statement of facts.
It is finally contended that if defendant’s obligation evidenced by his note be viewed as a contract of guaranty it is void under the statute of frauds because no sufficient memorandum of it was in writing. This point, too, is without merit. The resolution of the stockholders was in writing, and defendant’s note and the notes of the other stockholders executed contemporaneously were likewise in writing. These writings were reciprocal and mutual and pertained to the same transaction. (Whitlow v. Board of Education, 108 Kan. 604, 608, 196 Pac. 772; Flemming v. Ellsworth County Comm’rs, 119 Kan. 598, 601, 240 Pac. 591; see, also, Skinner v. Skinner, 126 Kan. 601, 276 Pac. 594.) They therefore did. satisfy the statute of frauds, if that statute had anything to do with this case, which is far from clear. No error appears in the record, and the judgment is therefore affirmed.
In cause No. 28,144, by stipulation of counsel, consolidation with cause No. 28,145 was ordered, and the issues of law and fact being similar in all material respects, the judgment in No. 28,144 is likewise affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs recovered a judgment for $3,500 as damages for the death of their six-year-old daughter through the alleged negligence of the defendant power company.
The material facts developed by the allegations and admissions of the pleadings and by the evidence tended to show that the defendant, the Kansas Power and Light Company, owns an electric distribution system in Hiawatha, and that its wires are strung at a height of thirty feet and affixed to poles- set along the streets and alleys of the city. The primary wires carry 2,300 volts. One such wire was strung in an alley back of plaintiffs’ residence. On August 12, 1927, about noon, plaintiffs’ small daughter was killed by coming in contact with defendant’s wire which had broken and fallen to the ground. The break in the wire was about eight feet from the nearest pole. No witness saw the breaking of the wire nor the killing of the child. She was found lying on the wire on the ground. The insulation of the wire had become frayed and hung in shreds, leaving the bare wire exposed in many places. The electric current had burned off and partly consumed the child’s right forearm; her left hand and forearm were charred; her chest was blistered and her side burned just below the ribs; and there were numerous other burns about her thighs and abdomen, and most of her clothing was consumed. The other facts in evidence chiefly dealt with the age of the wire, the feasibility of insulating it, the frequency of its inspection and the care given thereto, the short interval which elapsed between the time when the wire was delivering power and the time when the child’s body was found upon the broken portion of it which lay on the ground. Other facts in evidence will be referred to, if necessary, as we proceed.
While no direct testimony was given touching the age of the wire, or whether it was new when first put up, it was shown that it had been hung for ten or twelve years, and that insulation is fairly good for fifteen or twenty years, and that the insulation on the wire which broke and killed this child had been hanging down in shreds “a foot or two” and that this defective condition of the insulation was visible from the ground thirty feet below. It was also shown that after the accident the broken wire was promptly repaired, and a section of the old wire about five feet,long was removed and a piece of new wire inserted in its stead.
The first error assigned deals with the overruling of defendant’s demurrer to the evidence. Can it be said as a matter of law that the facts summarized above did not make out a prima facie case of negligence against the defendant, and that the court should have taken it'away from the jury? We think not. It was a fair question for a jury to decide whether or not it was negligence for the defendant to maintain a wire so old that its insulation, which ought to last fifteen or twenty years, was ragged and hanging down in shreds and strips of one or two feet in length. A jury might fairly say that the defendant either did know or should have known that its wire was so old that it was liable to break, and that if it did break its possibilities for mischief were great and obvious. In Stone v. City of Pleasanton, 115 Kan. 378, 233 Pac. 312, where the city was heavily mulcted in damages for injuries to a boy who came in contact with a guy wire charged with electricity from the city’s power system, this court said that whether the mayor actually did know of the defective condition of the wire was not1'controlling; that—
“The circumstances were such that the jury would have been almost compelled to find that the city knew of the dangerous condition although all the living city officers testified that they knew nothing about it. Under the circumstances, their lack of knowledge would have justified the jury in finding negligence on the part of the city. Ignorance of conditions may be negligence.” (p. 382.)
In Snyder v. Light Co., 98 Kan. 157, 157 Pac. 442, a boy was killed by an electric shock from a power -wire strung thirty feet above the back yard where he was playing. The insulation had rotted in many places, leaving the wire bare. In some unknown way a small wire with a small stone at the end of it had been flung over the power wire, and the electric current found its way from the uninsulated power wire to the boy’s body through the medium of the small wire flung over it. The plaintiff saw that the boy’s clothing was ablaze and she rushed to his rescue, and received a severe electric shock which injured her. In an appeal from the judgment for damages in her favor it was contended, among other mat-, ters, that the defective insulation was not the cause of the lad’s death. But .this court said:
“It was the acknowledged duty of the defendant to insulate its wires. They were not insulated at the place of contact and had been unprotected for several years before the plaintiff was injured by "the escaping current. . The current escaped from the control of the defendant through its neglect. It is clear that if the defendant’s wires had been properly insulated the plaintiff would not have been injured.” (p. 159.)
The court exhaustively reviewed earlier cases in this and other jurisdictions, and further said:
“It is conceded that a party who conducts so powerful and destructive an agency through the streets of a thickly populated part of a city is bound to exercise a degree of care commensurate with the dangerous character of the agency to protect those who may come in contact or even in close proximity with its wires. The highest care and utmost caution should be exercised for the safety of the public, including those engaged in business or play, and for the protection of thoughtless, curious and inexperienced children, as well as those who have reached maturity. [Citing cases.] To secure protection as against electric wires of dangerous voltage, it is essential that they should not only be safely placed but should be carefully covered with insulation to prevent the escape of the destructive current. Even ordinary care requires that the current should be confined, . . . The defendant’s wires were insulated when the line was first constructed and were safe as against casualties such as befell the plaintiff, but the defendant failed to maintain these wires in that condition. It was a continuing duty of the defendant to keep its wires insulated, but it appears that the insulation had been broken and the wires had been partly bare for a long time. The defendant, therefore, must have known that the wires were uncovered, and the electric current unconfined at the place in question. As a result of its negligence in turning loose the deadly current in a busy section of the city, the plaintiff, to whom no fault can be attributed, was injured. . . . The highest care and utmost caution imposed by the law upon those handling this destructive agency require a sharp and searching inquiry into the occurrences and accidents that are not unlikely to happen from uninsulated high-voltage wires, and they should take into account the acts of children, of strangers, as well as the probable results of storms and high winds. The mere fact that the intervening act of another contributed towards the injury does not relieve the defendant of the responsibility for the original negligence of leaving the wires uncovered.” (pp. 160, 161.)
The contention is made that the defendant’s wires, including the one that broke and caused this child’s death, were regularly inspected and that no defect was discoverable by such inspection. A jury might fairly conclude otherwise. It might infer that the hanging shreds of frayed strips of insulation was a fair warning to the defendant that its wires were aging to the point where common prudence required their replacement or at least their reinsulation. (20 C. J. 359-361.)
In Electric Light Co. v. Healy, 65 Kan. 798, 70 Pac. 884, a boy was killed by climbing over the railing of a viaduct and getting hold of an electric wire from which the insulation had rotted away. In affirming a judgment against the power company this court said:
“An electric company laid its wires on the viaduct of a city street, outside but close to the traveled way, between which wires and way was a railing or balustrade over which small boys were in the habit of climbing and getting close to the wires. The wires were defectively insulated, of which fact and of the habit of the boys the company had knowledge. One of the boys, when in the act of climbing, was killed by coming in contact with the' uninsulated wires. Held, that the company is liable.” (Syl. ¶ 2.)
If it was negligence subjecting the power company to damages for it to permit its wires to become uninsulated and dangerous to trespassers, it seems futile to debate the question of the liability of a power company which maintained the wire which killed Alberta Baker in the circumstances shown in this record. (See, also, Burns v. Emporia, 63 Kan. 285, 65 Pac. 260; id., 67 Kan. 523, 73 Pac. 94; Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807; Lewis v. Street Railway Co., 101 Kan. 673, 168 Pac. 856; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312; Leavenworth Coal Co. v. Ratchford, 5 Kan. App. 150, 48 Pac. 927; Waller v. Heating Co., 9 Kan. App. 301, 61 Pac. 327.)
The demurrer to plaintiff’s evidence was properly overruled.
The next error assigned pertains to 'the trial court’s refusal to direct a verdict for defendant. That point merely presents from another angle the question embraced.in the court’s ruling on the demurrer and needs no further discussion.'
Error is also assigned on the instructions-to the jury, particularly Nos. 16 and 20. It is needless to reproduce them. No. 16 was a correct statement of law under the decisions of this court cited above, and the only thing wrong with No. 20 was that it was too favorable to defendant — a matter of which it cannot justly complain. No. 15 is also criticized, but it is substantially the same as No. 16 and well supported by pertinent excerpts from our own cases cited above, to which may be added Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Hoffman v. Power Co., 91 Kan. 450, 138 Pac. 632; Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63; id., 98 Kan. 366, 158 Pac. 28; Logan v. Electric Co., 99 Kan. 381, 161 Pac. 659; Followill v. Gas & Electric Co., 113 Kan. 290, 214 Pac. 430.
Defendant complains that the standard of duty required of defendant by the instructions was equivalent to saying that it was held to the same responsibility as an insurer, a rule not warranted by precedent or authority. In this jurisdiction the old grades of diligence and negligence are no longer recognized. In lieu thereof we have the standard of due care under the particular circumstances (Jones v. Railway Co., 98 Kan. 133, 136, 157 Pac. 599); and in the care and maintenance of power wires whose age impairs their tensile strength and which become uninsulated with the lapse of years, the highest degree of practical diligence is properly imposed, and nothing in the instructions given to the jury held defendant to anything beyond that standard.
Error is also urged on the trial court’s refusal to give certain instructions requested by defendant. These emphasized the point that defendant was not an insurer of the safety of its electric wires strung along the streets and alleys of the city. We do not discern that any such contention existed in this lawsuit, and as the instructions given fairly covered the pertinent law of the case the refusal of those requested was not error.
The final error urged relates to the overruling of the defendant’s motion for judgment on the special findings, which were—
“Q. 1. How long before Alberta Baker came in contact with the wire had it been.broken? A. We do not know.
“Q. 2. What caused the wire to break? A. We don’t know.
“Q. 3. What notice, if any, did the defendant, the Kansas Power and Light Company, have of the fact that such wire had broken? A. They had none.
“Q. 4. What negligence, if any, do you find against the defendant, the Kansas Power and Light Company? A. Old wire and poor insulation.”
It is argued that these special findings did not allege as a ground of negligence that the defendant had used old wire. The petition alleged defendant’s breach of duty to maintain its wires in good condition and repair, "so that they would not become broken and so that they would not fall down and be in such a position that a child could come in contact with said wires while they were carrying a heavy voltage of electricity”; and “that said wires were not properly insulated and were not properly kept and maintained, all of which was known to the defendants or could have been known by the exercise of reasonable care.” The finding No. 4 is about as responsive to that charge of negligence as a jury of laymen could be expected to make it. It is also contended that the special findings are. inconsistent with each, other. That does not appear. The fact that the jury did not know what caused the wire to break (finding No. 2) takes nothing from the force of finding No. 4. If the wire had not been old, mayhap it would not have broken, whatever may have been the immediate cause of its breaking; and if the insulation had not been poor the unfortunate child would not have met a death so shocking and inexcusable.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The question presented here is whether the district court .has jurisdiction of a corporation sued in a county other than where its principal office is located. The trial court held in the affirmative and defendant appeals, raising the one question that the court was without jurisdiction. The facts are substantially these:
The petition recited that the defendant is a corporation existing under the laws of Kansas, having its principal place of business at Emporia, Lyon county, but at the present time has a branch office in the New England building in Topeka, Shawnee county. Summons was issued out of the office of the clerk of the district court of Shawnee county and served by the sheriff, the return showing that it was served “by delivering to L. E. Howard, local manager, highest officer found in my county, November 5, 1925, by delivering to each of said defendants personally a true and certified copy of this summons with all indorsements thereon.” Defendant’s motion to quash the summons and dismiss the cause reads:
“Comés now the defendant and appearing specially and for the purpose of this motion only moves the court to quash the summons issued in this cause and to dismiss this cause for the reason that this court is without jurisdiction over the defendant.”
Thereafter defendant answered, trial was had, with verdict for plaintiff.
Defendant contends that service in Shawnee county upon the local manager of its branch office was without effect; that it appeared specially and for the purpose only of raising the question of jurisdiction; that by asking the court to dismiss the action it did not submit itself to the jurisdiction of the court, and that the fact that it afterwards filed an answer to the merits and tried the case was not a waiver of the question of jurisdiction inasmuch as it asked for no affirmative relief but only that it be allowed to go hence with its costs. On the other hand, the plaintiff contends that there is statutory authority for the summons and service as made and that the defendant submitted itself to the jurisdiction of the court by filing a motion to dismiss the action in addition to its motion to quash summons.
A provision of the statutes reads:
“A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof.” (R. S. 60-2518.)
The return of the sheriff shows that service was made on the highest officer of the defendant in Shawnee county. There is nothing to show but that Howard was the managing agent or the local manager of the defendant. The defendant relies on another section of the statute which reads:
“An action, other than one of those mentioned in the first three sections of this article, against a corporation created by the laws of this state or of the territory of Kansas may 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; but if such a corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose, or where the plaintiff resides. But the provisions of this article shall not apply in the case of any corporation created by a law of this state or the territory of Kansas whose charter prescribes the place where alone a suit against such corporation may be brought.” (R. S. 60-504.)
It may be noted; however, that this section provides that the action against a corporation may 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 be summoned. In Henry v. Railway Co., 92 Kan. 1017, 142 Pac. 972, it was said:
“Where in the article of the code relating to venue it is provided that certain actions ‘must’ and that others ‘may’ be brought in certain counties and that all others must be brought in the county in which the defendant resides, or may be summoned, the actions with respect to which the permissive term ‘may’ is used, are not thereby rendered local, and they may be brought in any county in which the defendant may be summoned.” (Syl. If 1.)
Section 60-504 nowhere provides that the action must be brought in the county where the principal place of business is, but that it may be brought.
The question as to the powers and duties of a managing agent is discussed in 32 Cyc. 551, where it is said:
“In some statutes the provision is for service upon a managing agent. The term ‘managing agent’ has no strict legal definition and it is not easy to form a general rule that will govern all cases. The term is evidently intended to include only such an agent as has charge and management of the ordinary business of the corporation within the particular locality, and who is vested with general powers involving the exercise of judgment and discretion in the management of the ordinary business transacted, at least within that locality. In order that a person shall be a managing agent within such provision, it is not necessary that he shall have entire control or charge of defendant’s business, but he must be intrusted with the carrying on of the corporate business or some substantial part thereof.”
We are of opinion that where a domestic corporation maintains several offices in different counties within the state and where it transacts business in the several counties in which it has such local offices, as in this case, it is not necessary that suit against it be brought only in the county in which it claims its principal office. This conclusion renders it unnecessary to discuss the question as to whether or not the defendant entered its appearance or waived the jurisdiction of the court.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of the possession and sale of morphine, and appeals, contending, among other things, that a motion to discharge should have been sustained because of his entrapment by federal narcotic agents. The facts are substantially these: Federal narcotic agents gave to one Farrow five marked dollar bills with which to purchase morphine from the defendant. Farrow met defendant in a restaurant and made the purchase. Farrow then went to. the street and advised the federal agents and a police officer of the purchase. The police officer went into the restaurant and told defendant he was wanted outside. He came out, was arrested and searched, and the marked bills were found upon his person. He admitted that he had made the sale.
It is argued that the acts of the federal agents and the others acting with them amounted to a conspiracy to “create a criminal,” especially condemned in United States v. Healy, 202 Fed. 349; United States v. Echols, 253 Fed. 862; Casey v. United States (Apr. 1928, Adv. Op. 425). There was evidence indicating that defendant was in the business of marketing narcotics, and what appears to have happened was that the government agents set a “decoy” which successfully entrapped the' defendant. (Casey v. United States, supra, p. 423.) He told of his plant in the country and took the. officers to it, but it was found to have been washed away by heavy rains. This court in State v. Mullins, 95 Kan. 280, 303, 147 Pac. 828, approved the use of detectives in procuring testimony, and there appears no good reason to change the rule.
Defendant contends the court erred in its refusal to permit his counsel to read to. the jurors on their voir-dire examination the penalty provided for the offense charged against him, and in support of his contention cites State v. Curtis, 108 Kan. 537, 196 Pac. 445. What was there said is not applicable here. The statute provides:
“No person who believes the punishment fixed by the law to be too severe for the offense or entertains any opinion that would preclude his finding the defendant guilty, shall be sworn as a juror.” (R. S. 62-1405.)
In the instant case the defendant sought to read the statute to the jurors to ascertain if they did not think “the penalty too lenient for the offense.” The court adopted the theory, and we think not improperly, that as the jurors did not know what the punishment was, they could not be influenced or prejudiced by it. (See State v. Woodman, post, p. 166, this day decided.) However, the court specifically stated to the defendant that he would be permitted to ask any juror that did know the punishment if he thought it was too lenient, but the record indicates that no juror knew what the punishment was. If the jurors had thought the punishment too lenient it would have been to defendant’s advantage rather than to his prejudice.
The defendant complains of questions asked the jurors by the state’s attorneys, whether they would have any prejudice against government agents making a plan beforehand to procure evidence. He argues that the real object of the questions was to overawe the members of the jury and create a false impression beneficial to the state in the trial. The contention is without substantial merit.
It is argued that the narcotic l'aw (Laws 1927, ch. 241) is unconstitutional because it discriminates against physicians and others, in that it does not protect them as does the federal law, and that it discriminates against and fails to protect common carriers and others who are exempted by the federal law. That under its provisions any of those mentioned are subject to arrest and prosecution. Also, that the punishment thereunder is cruel because it is unscientific. That practically all possessors of narcotics are users, and that the legislature should provide for treatment and cure instead of punishment.
The contention of the defendant cannot be sustained. The state is not forbidden to enact such a law as that under consideration, nor is it limited by the fact that the provisions of the federal act differ in some respects from our statute. Then too, it is a matter of general knowledge that penal institutions of this state are equipped with hospital wards for the cure of those afflicted with such ailments. Moreover, the contention of the defendant that most of the possessors of narcotics'are users carries no weight so far as he. is concerned, because he testified that he was not a user of narcotics.
Complaints that the court erred in restricting the cross-examination of the witness Farrow and in excluding the testimony of certain character witnesses, have been considered but cannot be sustained.
We are able to discern no error which would warrant a reversal.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover the purchase price of a scholarship in a business college operated by the defendant, known as the Dague Business University. Plaintiff prevailed, and the defendant appeals. The facts are substantially as follows:
A representative of the Dague Business University solicited the plaintiff (and plaintiff’s father for plaintiff) to attend the Dague school. A contract resulted which in part reads:
“This contract made and entered into this 19th day of September, 1924, at Wichita, Kansas, by and between the Dague Business University and Mr. Judson Yantiss, the parent of Jesse Yantiss, hereinafter referred to as student:
“Witnesseth: That for and in consideration of the sum of two hundred eighty and no/100 dollars, the Dague Business University agrees to instruct said student through the home study department, or at the university, or both, for a period of life from this date in the combined course as taught by said university. This course subject to 20 per cent discount if paid in cash. . . . Books for said course being extra, and cost $17 cash, or they may be sent C. O.D. to your postmaster.
“The student agrees to perform faithfully all work required by the University in a painstaking and thorough manner, and it is understood and agreed that in order to accomplish the work of this course it is necessary that the student send to the university for correction an average of two lessons a week, or more, in each of the above mentioned subjects.
“It is also understood and agreed that the student must finish the work consecutively and in order, and that the branches of the second division will not be started until the student has finished the branches of the first division and obtained an average grade of not less than 85 per cent.
“During the study of the subject of typewriting, mentioned in the second division of subjects taught, the student shall be furnished for his own use, in his own home, for a period of five months a standard keyboard typewriter, which typewriter shall remain the property of the Dague University, and shall be properly boxed, directed and returned by the student to the express office at Long Island, Kan., immediately upon expiration or completion of the second division of the course. In case the student fails to return the machine promptly as agreed he shall pay therefor a rental of five dollars a month, payable strictly in advance. The university pays express both ways on typewriter, but does not attempt to make delivery beyond railway depot.
. “It is agreed by the university that when said student shall have finished the work required for this course, shall have attained a grade of 85 per cent or better, he shall be furnished without further charge a diploma of graduation and shall receive the free aid of the university in obtaining a position. Said student shall at all times have free access to our employment bureau.
“Our standards for grading are those fixed by the U. S. Civil Service Commission. On shorthand: 80 words a minute, 70 per cent; 100 words per minute, 80 per cent; 120 words per minute, 90 per cent; 140 words per minute, 100 per cent. Typewriting: 60 words per minute from manuscript, perfect work, 100 per cent.
“And it is further agreed that should said university for a space of ninety days after graduation, be unable to place said student in a position with a reliable business concern, then the university will upon demand refund to the said student the entire amount of tuition hereon paid.
“It is agreed that the above provisions have been duly considered by both parties and that no further conditions of any kind whatever exist under it. This contract is not subject to cancellation, but in case of illness, and all payments have been made hereon, the university will upon application in writing issue a certificate for all unused time. This shall be transferable, student having the right to dispose of to one desiring like work.
“Keep this contract. Refer to it frequently.
“To this agreement witness our signatures in duplicate the place and date first above named. Dague Business University,
By Olen Glaze,
J. C. Yantiss, Parent,
Student, Jesse Yantiss. -Town, Long Island. State, Kansas.
Asocíate student, at one-half price: Name (any member of family).
Books, $17.
Student represents that he is 19 yearn of age.”
The plaintiff was nineteen years old at the time the contract was made. He attended the Dague University for a few weeks, ran out of funds, decided to quit, and demanded the return of what he termed the unused "portion of his scholarship. He testified that the check given for his scholarship (tuition) was out of his own money, earned by his own efforts; that he tried to stop payment on the check the next day after he had given it, but that the check had already been cashed; that he attended Dague Business University for two months, in January and February, 1925, but did not attend or receive any instruction after he arrived at the age of twenty-one. Fourteen months after reaching majority he filed this action to rescind the contract and recover the amount he had paid, less an amount he estimated the school was entitled to for the time he had attended.
The court concluded that while the father signed the contract it was one between the university and the student, and the plaintiff was entitled to recover. Several reasons are advanced by the defendant why the plaintiff should not prevail, the first of which, we think, will dispose of the controversy. It is contended that the student was required only to “perform faithfully all of the work required by the university, in a painstaking and thorough manner”; and that other than this the contract was one between the father and the school. On the other hand, the plaintiff argues that whether the contract was between the university and the parent or the university and the plaintiff (student) was one of fact, and that the trial court having found that the contract was between the university and the plaintiff, the defendant is bound thereby. The contract was in writing, and therefore one which can as readily be passed upon by this court as by the trial court. We think there are several provisions in it which indicate that it was the intention of the university to deal directly with the parent and not with the minor. In fact) it may be suggested that the university dealt with the parent because the plaintiff was a minor at the time and that there was no other way that the university and the parent could provide a means of education for the minor. It may be observed that the contract provided that any member of the family of the parent, J. C. Yantiss, might become an associate student at one-half price. This stipulation, as well as others in the contract, was undoubtedly intended to be enforceable by the parent. If the university had refused to receive another member of the family of J. C. Yantiss under the terms specified therein, J. C. Yantiss would have had action for the breach of the contract. The form of the contract and place for signatures in the lower right-hand corner, is the usual and ordinary place where contracts are signed. It is argued by the plaintiff that if the contract was one with the father instead of plaintiff, that the plaintiff would have been under no obligation to have paid the money thereon, and that alone would be sufficient reason why plaintiff should recover back what he had paid. We think the answer to this contention is that the plaintiff furnished the money that was paid on the contract between the father and the university, and if any cause of action existed in favor of the plaintiff for having so done it would be against the father.
The contract provided that the student might receive instruction at his home. Under the circumstances it was hardly a sufficient excuse to contend that the plaintiff was required to abandon attendance at the university because of lack of funds. It was also for the period of his life, so that he might take up the courses thereunder at any time.
The conclusion at which we have arrived renders unnecessary a discussion of the other propositions urged in the briefs.
The judgment is reversed and the cause remanded with instructions to render judgment for defendant.
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The opinion of the court was delivered by
Hopkins, J.:
A rehearing was granted in this case on the petition of the defendant. (Cracraft v. Wichita Gas Co., 126 Kan. 775, 271 Pac. 273.) The case was again briefed and orally argued and has been again fully considered.
Among other things the defendant contends that the original opinion “in effect applies the doctrine of res ipsa loquitur to the existing situation and holds that the cause of an explosion can be proven solely by the elimination of other causes.” The contention is not fair. This court did not apply the doctrine of res ipsa loquitur in the instant case. Nor did it arrive at a decision solely through the process of elimination. As on the former submission, the defendant’s argument questions the sufficiency of the evidence. It may be properly repeated that the evidence showed that the explosive agency was natural gas; that it came from the city sewer and escaped upon the premises through a soil pipe and that it must have come either from the line- of the Wichison company or that of the defendant. There was no other source from which the gas could have come. There was substantial evidence to the effect that the line of the Wichison company was not changed nor were there any excavations made thereon from April 18 until May 3; that during that interim the gas stopped escaping on the premises where the explosion had occurred; that the thing which caused the gas to stop was some physical act which shut off the source of supply. On April 19 (the day following the explosion) a permit was taken out by the defendant to cut the pavement, “for the purposes of . . . repairing main.” Was this not an indication that something was wrong with defendant’s main? Since the Wichison company did not perform any physical acts on its lines, it cannot reasonably be said that the jury had no basis on which to conclude that the escaping gas came from the line of the defendant company. A somewhat-similar situation was presented in Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468, where it was said:
“Direct proof of negligence is not essential to a recovery, as negligence may be established by circumstantial evidence alone. If the circumstances proved fairly authorize the inference of negligence, and the jury have drawn that inference, it is enough.” (p. 329.)
In Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215, it was said:
“Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than the one arrived at by the jury.” (Syl. f 2.)
(See, also, Railway Co. v. Colliati, 75 Kan. 56, 88 Pac. 534; Lane v. Insurance Co., 113 Kan. 365, 214 Pac. 92.)
The actionable negligence in the instant case arose only after notice of the escape of gas and a reasonable opportunity to repair. The finding of the jury upon this point was amply sustained. The defendant had opportunity to find the leak and repair it prior to the explosion, but failed to do so.
We cannot agree with the defendant that the verdict was arrived at by basing inference on inference. Nor can we agree that the rule announced in State v. Trimble, 12 S. W. (2d) 727, 732, if applied here would relieve the defendant of liability. In that case it was said:
“It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred. But this inference must, after all, be a legitimate inference and not a mere speculation or conjecture. There must be a logical relation and connection between the circumstances proved and the conclusion sought to be adduced from them. This principle is never departed from, and in the very nature of things it never can be disregarded.” (Benedick v. Potts, 88 Md. 52, 55, 41 L. R. A. 478.)
And so in the instant case the direct proof and the circumstances attending it formed a sufficient basis on which to rest the jury’s conclusion.
It is argued that the decision of this court was based upon a misunderstanding of the jury’s answer to question No. 7. The defendant is in error. The jury were asked and answered questions 6 and 7 as follows:
“Q. No. 6. Did the escaping gas from the source which caused the explosion stop escaping on Wednesday or Thursday following the explosion on Monday? A. Yes.
“Q. No. 7. If question No. 6 is answered in the affirmative, state what caused the escape of gas to stop. A. Some mechanical means unknown to jury.”
The rule requires this court to reconcile the answers of the jury to special questions with the general verdict. Doing so, the jury in effect made its general verdict against the defendant the same as if it had answered an additional question (No. 8) that the “mechanical means” referred to was used by the defendant. The special findings when considered in connection with the general verdict leave no room for any other reasonable conclusion.
A misstatement of fact in the original opinion (which did not affect the result) that “the Wichison line was several blocks distant from the premises” should be corrected. It was in fact only across the street. It crossed the sewer at right angles to connect with a schoolhouse.
After again giving the case full consideration we are unable to arrive at any different conclusion than that previously announced, and therefore adhere to our first decision.
The judgment is affirmed.
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The opinion of the court was delivered by
Gilkeson, P. J. :
But one question is presented for our consideration, and for the sake of brevity we will consider it in this form : Who was the owner of the judgment rendered on May 29, 1890, in the case of S. L. Parkhill against Hunter Bros.? The court, among others, made the following findings of fact:
"No. 7. The attorneys who brought the suit for the Parkhills against the plaintiffs herein (Hunter Bros.) were defendants herein — T. M.. Noble, N. T. Van Natta and J. F. Close. At the time of the bring ing of the same, there was no definite understanding as to the fees, although it was talked between them that whatever fees the attorneys recovered would have to be recovered out of any judgment Parkhill might recover against the Hunters ; for the Parkhills ■were in failing circumstances — owing more tb an they could pay. Immediately after the hearing of the motion to dismiss, it was agreed between said attorneys and S. L. Parkhill that the attorneys should have, for their fees in the suit of S. L. Parkhill to recover from Hunter Bros, the value of property, one-lialf of the judgment recovered, and out of the other half they should be entitled to retain such an amount as their services were reasonably worth which they had rendered S. L. Parkhill in other suits, and as much as they have rendered or might render Emma D. Park-hill in her suit. This agreement was oral and not in writing, and made as above soon after the hearing of the motion to dismiss, in October, 1889.”
“ No. 9. Immediately upon the reception and reading of the verdict, said Parkhill executed and delivered to his said attorneys, who have since, retained the same, the following written assignment:
‘Belleville, Kan., October 4, 1889.
‘ For a valuable consideration, I hereby sell and assign all my right, title to T. M. Noble and VanNatta & Close in and to a certain judg ment I have this day recovered against Hunter Bros., in the case of S. L. Parkhill v. Richard Hunter and Henry Hunter, partners as Hunter Bros., for the sum of $480, in the district court of Republic county, Kaiisas.
[Signed]
S. L. Pakkhill.’”
The court further found that the date of the written instrument above set forth was the date upon which the verdict of the jury was rendered, but that no judgment was rendered upon said verdict until after the hearing of the motion for a new trial, which was on the 29th day of May, 1890 ; that, between the dates of rendering the verdict and the giving of the judgment, Parkhill filed a motion for judgment on the verdict, which the court refused to render until after the motion for a new trial should be heard.
As a conclusion of law the court found :
“No. 3. Although, as between the defendant S. L. Parkhill and his attorneys, they had a claim against him for one-half of the amount of his judgment against Hunter ,Bros., to wit, $204, also the reasonable value of their services rendered about other matters, to wit, $70, making a total of $274, yet they had no attorney’s or other lien for this amount, or any portion thereof, as against the Hunter Bros., and, under all the circumstances, there were no steps they could take as against Blunter Bros, to cut off the right which they (Blunter Bros.) had to have their judgment for $947.95 offset against any judgment Parkhill might recover against them on account of any matter then existing between them. Neither could Parkhill assign his judgment against the Hunters or the claim on which it was based to the attorneys or any one else for attorney’s fees or other consideration so as to cut off that right of the Blunter Bros.”
Reading findings of fact 7 and 9 together, was there not virtually an assignment to the attorneys of the sum found to be due by the jury, even though no judgment had been rendered thereon? Does not the word “judgment” used in the written instrment evidently refer to the mere fact of recovery by the verdict, and is not this written instrument - sufficient to carry with it the right to all future benefits that might arise by reason of the fact that a certain sum had been found due, and could not the attorneys, in the event of a new trial being granted, rightfully claim that the cause of actipn from that date had been assigned to them? Did not it assign the claim that Parkhill had against the Hunter Bros.? The same rule should apply in construing this as .in the case of a sale of personal property, “that the intent of the parties controls, and if they intended a perma nent vesting of the title, the title will at once pass.” (Kneeland v. Renner, ante, p. 451, 43 Pac. Rep. 95.)
Section 420, civil code, provides :
‘ ‘ In addition to the causes of action which survive at common law, causes of action for mesne profits, or for injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive ; and the action may be brought, notwithstanding the death of the person entitled or liable to the same.”
It is conceded that the action of Parkhill against Hunter Bros, was in tort. Can such a claim be assigned? We think so. The taking of a man’s money tortiously is such a tort as affects and injures his personal estate, and at the same time it increases the value of the estate of the person who receives it, and such a claim can be assigned. In Stewart v. Balderston, 10 Kan. 142, Mr. Justice Valentine, in delivering the opinion of the court, says :
“ Under the statutes of this state, a cause of action for money had and received, whether obtained tortiously or otherwise, as well as every other cause of action which affects injuriously the estate of the party injured, is such a cause of action as will survive after the death of the party injured to his legal representatives. (Civil Code, §§420, 421.) And, according to many of the authorities which we have already cited, this is conclusive proof that the cause of action is assignable. As long ago as 1828 it was said, in the case of Comegys v. Vasse, 1 Pet. 213, Mr. Justice Story, delivering the opinion of the court, that, ‘In general, it may be affirmed, that mere personal torts, which die with the party and do not survive to his personal representatives, are not capable of passing by assignment; and that vested rights, act rem and in re, possibilities coupled with an interest and claims growing out of and adhering to property, may pass by assignment.’ And this doctrine has been generally followed in this country ever since. It is now generally said that survivorship of a cause of action and assignment go hand in hand.”
We think, therefore, that on the 4th day of October, 1889 — the date the written assignment was made — the attorneys were the owners of any and all rights that Parkhill had before under his claim against Hunter Bros. Until the cause of action became merged into a judgment, and thus became a debt, Hunters could not set off. “A verdict in an action in tort does not convert the tort into a debt; it does not become a debt until it is merged into a judgment.” (Stauffer v. Remick, 37 Kan. 454.) The Hunters' right of set-off arose after judgment, which was months after the claim was assigned.
The judgment in this case will, therefore, be reversed, and cause remanded with instructions to award to the defendants, Noble and Van Natta & Close, so much of the judgment against Hunter Bros, and in favor of S. L. Parkhill as found by the trial court to be due them from Parkhill for services, viz., $274, and that the balance of said judgment be credited upon the judgment of Hunter Bros, against Parkhill.
All the Judges concurring.
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The opinion of the court was delivered by
Dennison, J. :
In the determination of this case there seem to us to be two questions that present themselves for our consideration : (1) Do the records disclose such a state of facts as entitle a bona fide holder of the bonds to recover thereon? (2) Is the township estopped from defending against the bonds by reason of the recitals contained in the bonds?
The defendants in error introduced in evidence the contents of pages 81, 82 and 83 of the record, which were copied from a typewritten paper brought to the meeting held at the cleric’s house on the 7th day of February, 1890, by Pitzer and Stein, and which purport .to be signed by the township cleric. The contents of said pages 81, 82 and 83 are as follows :
“That afterward, on the 3d day of December, 1889, an election was held in Faullcenstein township, in pursuance with the above notice, and such election being conducted in all things according to law, and after the polls were closed said officers of said Faullcenstein township did meet at the office of said township cleric, in the township of Faullcenstein, county of Stanton and state of Kansas, for the purpose of and did then and there canvass' the votes cast at said election held on the 3d day of December, 1889, as the law requires ; and said officers did then and there find that there had been 24 votes cast at said election, and that 21 votes were cast for said proposition, and that three votes were cast against said proposition; and whereupon it was duly ordered and declared by the honorable trustee, the clerk and the treasurer of said township of Faulkenstein, in the county of Stanton and state of Kansas, that said proposition to refund the said outstanding indebtedness by issuing 16 bonds of said township of Faulkenstein, of the denomination of $1,000 each, due 30 years after July 1, 1889, with interest at the rate of 6 per cent, per annum, payable semiannually, on July and January 1st of each year, was duly declared' carried. That afterward, on the 4th day of December, 1889, all and each of said officers of said Faulkenstein township being present, and duly assembled, John Rambo appeared before said township officers and then and there surrendered to said township officers of the said township of Faulkenstein, in the county of Stanton and state of Kansas, all and each of the outstanding indebtedness, indicated by certain scrip which he was the holder and owner of, amounting to $16,000, and the said township treasurer of the said township of Faulkenstein, in the presence of the other members of the township board, did accept from the said John Rambo the said township scrip, aggregating $16,000, and then and there destroyed said scrip by burning the same ; and the said J. E. Tucker, trustee, W. B. Ward,.clerk, and L. C. Manson, treasurer, of said township of Faulkenstein, in the county of Stanton and state of Kansas, did then and there make, execute and deliver unto the said John Rambo, in lieu of the said $16,000 of the township scrip that had been destroyed, 16 bonds of said township, of the denomination of $1,000 each, due in 30 years from July 1, 1889, dated on February 7, 1890, and bearing interest at the rate of 6 per cent, per annum, payable-semiannually, and both principal and interest made payable at the fiscal agency of the state of Kansas in the city of New York, and said interest being evidenced by 60 coupons attached to each of said bonds, 59 of said coupons each being for the sum of $30. each, and one of said coupons being for the sum of $8.50, and each of said bonds, together with the coupons thereto attached, having been duly signed by J. E. Tucker, trustee, attested by W. B. Ward, clerk, and countersigned by L. 0. Manson, treasurer, of said township of Eaulkenstein, in the county of Stanton and state of Kansas. No further business appearing, the board adjourned. — W. B. Ward, township clerk of the township of Eaulkenstein, in the county of Stanton and state of Kansas.”
This entry upon the record is claimed by the defendants in error to show the regularity of the action of the township officers, and, being a part of the records of the township and made by its officers, it is claimed that the township is estopped from denying it. This recites, in effect, that on December 4, 1889, John Rambo surrendered his scrip or warrants which were destroyed in his presence, and that the officers did then and there execute and deliver unto the said John Rambo, in lieu thereof, 16 bonds of $1,000 each, due in 30 years from July 1, 1889, dated February 7, 1890, etc. The court, in its findings of fact, finds that the signature of the clerk to this record is genuine; therefore the township is bound by it. The evidence seems clear that the typewritten paper of which this is a copy was never seen by any of the township officers until the meeting at Ward’s house, on February 7, 1890, and that it was brought there by Pitzer. However, it seemed to Pitzer and Stein that these things should appear in the records to have occurred on December 4, 1889, in order successfully to rob the taxpayers of the township out of the $16,000, and as the township officers have seen fit to adopt it as their record, the township is estopped from denying its contents, and for the purposes of this case the statements therein contained will be taken as true. Fortunately,however, the records of the township made on December 21, 1889, on page 70 thereof, had apparently escaped their notice. The bonds had been executed and delivered to John Rambo, the alleged township cred itor, on December 4, 1889, so says the record introduced by the defendant in error. "What was next done with the bonds? The record, at page 70, tells us. The portion thereof which relates to the bonds reads as follows :
“December the 21st, 1889. J. E. Tucker and W. B. Ward met at Mr. Haas’s bank, being the Stanton County Bank, and receiving the sugar bonds there on deposit, then and there did destroy by burning, in the presence of Lewis Haas and N. R. Lyons.
W. B. Ward, Cleric.
J. E. Tucker, Trustee.”
■ Now, let us stop and recapitulate and see the condition of things on December 21, 1889. Warrants had been issued to Rambo ; Rambo had agreed to compromise for refunding bonds ; an election had been held, and a majority had voted in favor of issuing the refunding bonds. The warrants had been surrendered by Rambo and destroyed. The refunding bonds had been executed and delivered to Rambo. The bonds had been destroyed by burning and Rambo ratified their destruction. This is a complete transaction. The township now owes nothing to Rambo, and, so far as the records are izz. evidence, it has no outstanding indebtedness. The defendants in error in their petition allege that the bonds in this suit were executed on or about February 7, 1890, and have provezr that they were executed at that time’at Ward’s house. On February 7,1890, the township had no indebtedness to fund. There was no offer to compromise. There was no electiozi and no record of any by which any bozids could have been issued other than those which had been issued on Decezhber 4, 1889. Of course if there had been valid proceedings for the issuance of bonds on December 4, 1889, and for any reason the issue thereof had been postponed until February 7, 1890,. and even if some error had been made in those they had attempted to issue, .the officers could have destroyed them and issued others, and the record could have shown the facts as they occurred. But in this case the record recites the fact to be that the bonds were executed and delivered to John Rambo on December 4, 1889. This certainly ends this transaction so far as the issue of the bonds was concerned. The warrants had spent their force, and been canceled. The election had granted authority to the officers to issue the bonds and it had therefore spent its force. The authority conferred by the election had been exercised and the bonds were issued and delivered to John Rambo, and the authority granted by the election had ended. Nothing now remained for the township to do but to procure the bonds from John Rambo, with his assent, and destroy them. After that was done the transaction was completed, and in order to charge the township with any other indebtedness it must be thereafter created. After that was done, no other bonds could be issued which would bind the township unless the prerequisites required by law had been again performed. The bonds were procured with the assent of Rambo, and were destroyed. The whole transaction was therefore completed. Everything had been wiped off the slate, and all parties were at liberty to begin again or to refuse to do so, at their pleasure. The bonds which Pitzer and Stein induced the township board to issue on February 7, 1890, and which purport to be refunding bonds, were issued when there was no debt to fund, and no offer to compromise any such indebtedness had been made. There was no election held authorizing any issue of such bonds. The action of the board in pretending to issue the bonds and then exchange them for a worthless contract to build a sugar-mill was absolutely without authority and void. An inspection of the township records would hav.e disclosed the contracts with Pitzer and the transaction with Soper to any one who might have examined them prior to the purchase of the bonds.' This would have been an additional circumstance to have put an intending purchaser upon his guard. An inspection of the records in the office of the auditor of state would have shown a notation not to register any more bonds, and also that these bonds had been registered after the time for their registry had expired. So far, therefore, as the records of the township are concerned, they show conclusively that the bonds were issued without any authority whatever, and if those records impart notice to a bona fide holder thereof, the bonds are absolutely void.
We come now to a consideration of the second question, viz. : Is the township estopped from defending against the bonds by reason of the recitals therein contained ?
It has been uniformly held by the supreme court of the United States, that where by legislative enactment authority is given to a municipality or to its officers to issue municipal bonds, but only on some precedent condition, such as a popular vote, or in an amount limited by the amount of taxable property, and where it may be gathered from the enactment that the officers of the municipality were invested with power to decide whether those conditions have been complied with, their recital that they have been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality, for the reason that the recital itself is a decision of the fact by the tribunal selected by the legislature to decide those questions. This doctrine is announced in Knox Co. v. Aspinwall, 62 U. S. 544; Coloma v. Eaves, 92 id. 484, and many others.
The dissenting opinion of Justice Miller, concurred in by Justices Davis and Field, in 92 U. S. 646, is a strong one. However, the doctrine announced in the majority opinion has been adopted by our supreme court in The State, ex rel., v. Comm’rs of Kiowa Co., 39 Kan. 657, and cases therein cited.
The bonds in this case recite that they are ‘ ‘ issued by virtue and in accordance with the provisions of sections 1, 2 and 3 of chapter 50 of the Laws of 1879,” being a portion of the refunding law, and they also contain the following :
“And it is further certified and recited, that all acts, conditions and things required to be done precedent to and in the issuance of said bonds have been done, happened and performed in regular and due form as required by law.”
Sections 1, 2 and 3 of chapter 50 of the Laws of 1879 read as follows :
“Section 1. That every county, every city of the first, second, or third class, the board of education of any city, every township, and every school district, is hereby authorized and empowered to compromise and refund its matured and maturing indebtedness of every kind and description whatsoever, upon such terms as can be agreed upon, and to issue new bonds, with semiannual interest coupons attached, in payment for any sums so compromised; which bonds shall be issued at not less than par, shall not be for a longer period than 30 years, shall not exceed in amount the actual amount of outstanding indebtedness, and shall not draw a greater interest than 6 per cent, per annum.
“ Sec. 2. Bonds issued under this act by any county shall be signed by the chairman of the board of county commissioners, and attested by the county clerk, under the seal of the county. Bonds issued by any city shall be signed by the mayor, and attested by the city clerk, under the seal of the city. Bonds issued by any township shall be signed by the trustee, attested by the township clerk, and countersigned by the township treasurer. Bonds issued by the board of education of any city shall be signed by the president, and attested by the clerk of the board, under the seal of such board. Bonds issued by any school district shall be signed by the director, attested by the clerk, and countersigned by the treasurer of the school-district board, and the coupons shall be signed by the mayor, president, director, trustee or chairman of the board of county commissioners, and the clerks, respectively. Such bonds may be in any denominations, from $100 to $1,000, and made payable at such place as may be designated upon the face thereof, and they shall contain a recital that they are issued under this act.
‘‘ Sec. 3. When a compromise has been agreed upon, it shall be the duty of the proper officers to issue such bonds at the rate agreed upon to the holder of such indebtedness, in the manner prescribed in this act; but no bonds shall be issued under this act until the proper evidence of the indebtedness, for which the same are to be issued, shall be delivered up for cancellation : Provided. That no compromise by any township or school district shall be of any validity unless assented to by the legal voters of such township or school district, at an election or school meeting called for such purpose, of which election or school meeting at least 10 days’ notice shall be given.”
This is the legislative enactment recited in the bonds by which authority is given the township officers to issue them. The conditions precedent, as gathered from the act, are an indebtedness, an agreement to compromise, an election after 10 days’ notice, the canvass of the vote, the finding that a majority favor the compromise, and declaring such to be the result. After these things are done, the township trustee, clerk and treasurer are authorized to execute and deliver the bonds. If these officers are invested -with the power to decide whether these conditions have been complied with, and such power is vested by the legislative enactment recited in the bonds, then this decision is binding upon the township. A critical examination of these three sections discloses the fact that the township officers are by them invested with the power to compromise and refund its matured and maturing indebtedness, to issue refunding bonds therefor, and to sign the bonds. They are prohibited from issuing them until the proper evidences of indebtedness are delivered up for cancellation ; and it is provided that the compromise shall be of no validity until an election has been called, upon 10 days’ notice, and the voters have assented to the compromise. Who is to determine whether there is a valid indebtedness against the township? Evidently the township officers ; but in order to determine that this is so, we must rely upon other laws than the three sections mentioned. They are to call an election, and give 10 days’ notice thereof. Who is to canvass the votes and declare the result? Or, in other words, who is to determine whether the legal voters have assented to the compromise? It must be conceded that the three sections recited in the bonds do not inform us. In order to be informed upon this question we must look to other sections of the statutes. Turning to paragraph 442 of the General Statutes of 1889, we find that it reads as follows :
“Before the issuing of any such bonds, the proper officers of such county, city or township shall cause an election to be held by the legal voters thereof, at the usual place or places of holding elections in such county, city or township, and to be conducted and the returns thereof ascertained in the manner provided by law for holding general elections.”
In order to ascertain how general elections are conducted and the returns thereof ascertained, we must look to ¶ ¶7071 and 7072, supra, being §§ 9 and 10 of an act relating to townships and township officers, a portion of which reads as follows :
“The board of county commissioners shall constitute a board of canvassers. They, shall assemble at the office of the county clerk in their respective counties on the Friday following the election provided for in this act, and shall proceed to canvass the votes of the several townships of their counties for township officers voted for, in the same manner as the votes for other officers are canvassed. . . . They shall determine who have been elected to the several offices in each township in their respective counties, which determination they shall reduce to writing and cause a certified copy thereof to be filed in the office of the county clerk; and it shall be the duty of the said county clerk to issue certificates of election to the persons so determined to be elected, and deliver or forward the same to the persons entitled thereto.”
We find by these sections (and not by the three sections mentioned in the bonds) what tribunal has been selected by the legislature to decide these questions, and we also find that the township officers do not .compose the tribunal so selected, but that, instead of them, the board of canvassers, consisting of the board of county commissioners, is the tribunal selected to decide these questions, and the county clerk is to notify the township officers of the result. It must therefore clearly appear that the bonds to which the coupons sued upon were attached do not come within the rule laid down in Knox County v. Aspinwall, supra. We shall therefore proceed to consider the bonds freed from any statement contained therein which relates to the result of an election. The language of said section 3, recited in the bonds, is of itself sufficient to require a person intending to purchase the bonds to inquire into the sufficiency of the election. It says that
“No compromise by any township or school district shall be of any validity unless assented to by the legal ■voters . . . at an election or school meeting called for that purpose, of which election ... 10 days’ notice shall be given.”
This is a direct notice that such an election shall be held, and the purchaser is bound thereby. It has. now been sufficiently shown in this opinion that the records do not disclose such a state of facts as entitles a bona fide holder of the bonds to recover, and that the township is not estopped from defending against the bonds by reason of the recitals contained in the bonds.
The only remaining question to be considered by us may be stated as follows : Is the defense as shown by the records sufficient* to defeat a recovery? This question must be answered in the affirmative. The bona fide holders had no right to presume that they were issued under the circumstances which gave the requisite authority. They were bound to take notice of the township records. The township records show no authority whatever for the issuance of these bonds. No authority being shown by the records, the presumption is that none existed. Surely the authority to. contract must exist before any protection as an innocent purchaser can be claimed by the holders of the bonds. The United States supreme court has said :
“In each case, the person dealing with the agent, knowing that he acts only by virtue of a delegated power, must, at his peril, see that the paper on which lie relies comes within the power within which the agent acts. And this applies to every person who takes the paper afterward; for it is to be kept in mind that the protection which commercial usage throws around negotiable paper cannot be used to establish the authority by which it was originally issued.” (Floyd Acceptances Gases, 7 Wall. 676.)
Also, in another place :
“The supervisors possessed no authority to make the subscription or issue the bonds, in the first instance, without the previous sanction of. the qualified voters of the county. The supervisors in that particular were the mere agents of the county. They could not therefore ratify a subscription without a vote of the county, because .they could not make a subscription in the first instance without such authorization.”
Judge Cooley, in his work on Constitutional Limitations, says that, whenever a want of power exists, a purchaser of securities is chargeable with notice of it, if the defect is disclosed by the corporate records, or, in that case, by other records, where the power is required to be shown.
We have not treated this last question ,as fully as we would have done but for the fact that it has been exhaustively • discussed- by Mr. Justice Brewer in Lewis v. Comm’rs of Bourbon Co., 12 Kan. 186. We have only endeavored to make enough comments to render this opinion intelligible (and these comments have been largely taken from that case). For a full discussion of the principles upon which this decision is made, reference is made to that case and especially to pages 216 to 222 thereof. We must hold in this case that the township officers had no authority to issue the bonds which they issued on February 7, 1890, being the bonds set forth in this suit, and others, and the records of the township show that they had no such power, but that what power they ever had was exercised in the issuance of the bonds which were destroyed on December 21, 1889.
In 1891 a tax was levied by the township to pay the interest on the bonds, which was paid to the county treasurer, but was never paid to the bondholders, because the township board protested against its payment. The defendants in error contend that the township ratified the acts of the township officers in issuing the bonds by levying this tax to pay interest thereon. This contention is not good. The tax was levied by the same officers who issued the bonds. The taxpayers could not hinder ’ the township officers from issuing the bonds nor levying the tax. (Craft v. Comm’rs of Jackson Co., 5 Kan. 518.) Their enforced silence can hardly be construed as an acquiesence. (Lewis v. Comm’rs of Bourbon Co., supra.) The taxpayers at their first opportunity elected another township board, and the new board protested against the payment of the interest and refused to levy any tax for such payment.
After the findings of fact by the court had been announced, both the plaintiffs and defendant filed motions for judgment upon said findings of fact. The court reserved its ruling upon both of said motions until after its announcement' and reading of its conclusions of law. The conclusions of law are as follows :
‘ ‘ The court concludes as a matter of law that the bonds, the coupons of which have been sued upon in this action, are legal and valid, and binding on said Eaullcenstein township, and the coupons herein sued upon evidencing the interest on said bonds are also valid and binding on said township ; that the bonds are refunding bonds issued by the township to refund outstanding indebtedness, evidenced by township war rants to the same amount; that the issuance of the same was completed by the delivery of said bonds to the American Sugar Company, who receipted therefor, and contracted for their consideration; that the plaintiffs are the owners and holders of said bonds and coupons, being the purchasers thereof for a valuable consideration; that the plaintiffs are the bona fide holders and purchasers of said bonds, without notice of any defect; that the statement of Stein to one of the plaintiffs was not notice ; that the records of the township clerk, county clerk and state auditor of matters concerning the issuance of the same, required by law to be kept by such officers, and in their offices, are not such as to impart notice to a bona fide holder for a valuable consideration.
‘ ‘ The court therefore concludes that said plaintiffs are the legal and bona fide holders and owners of said coupons sued upon, and are such without such legal notice of any defect, irregularity or illegality in the same as would deprive them of their right to enforcement of their claims and the collection of the same against the township, and that there is no such defect as would entitle the defendant to an effective defense against said obligations of the township.”
The court erred in the above conclusions of law. The plaintiff in error is clearly entitled to judgment for costs.
The judgment of the district court is reversed, and this case is remanded to the court below with instructions to render judgment in favor of the plaintiff in error against the defendants in error for costs.
All the Judges concurring.
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The opinion of the court was delivered by
Cole, J. :
The defendant, Seth Jones, was charged by indictment in the district court of Reno county with unlawful sales of intoxicating liquors. The indictment contained 15 counts, each setting forth a distinct sale. The defendant was found guilty upon each of said counts excepting the third, fifth, twelfth, and thirteenth, and was sentenced to pay a fine of $100 and to be confined in the county jail of Reno county for a period of 30 days on each of said counts upon which he had been convicted. From such conviction the defendant appeals to this court.
A number of errors are alleged by the defendant. The first and second may be considered together, and are that the court erred in overruling the defendant’s motion to quash the indictment, and that the court erred in finding against defendant on his plea in abatement. The particular grounds urged for the position of the defendant are, that the bill of indictment was not signed upon the back of the same by the foreman of the grand jury, and that the record does not disclose that the said indictment was presented by the grand jury in open court by the foreman and in the presence of the grand jury. The position of the defendant is not well taken. The indictment in this case was indorsed at the close of said indictment, just after the fifteenth and last count of the same, “A true bill,” followed by the signature of 0. W. Gray, foreman. The word indorse usually signifies, to. write upon the back of a paper or written instrument; but that is not the full meaning of the word. It also signifies to give sanction to. We apprehend that the foreman of a grand jury may properly comply with the statute by sanctioning the bill of indictment at the foot thereof as well as by writing his name upon the back of the bill. The real purpose of the statute is that the sanction of the bill by the grand jury may be shown upon the record, and the evidence of that sanction is the signature of the foreman of that body. The statute does not prescribe who shall indorse the names of the witnesses, and, so long as they are placed upon the indictment by one who represents the state in the prosecution of the offense stated in the indictment the indorsement is sufficient. The record in this case discloses that the indictment was signed by the county attorney, indorsed “A true bill” by the foreman of the grand jury, and filed by the clerk of the district court of Reno county. It has been repeatedly held that this is a sufficient record that the .indictment was duly returned and presented in open court. This cause was tried during the same term at which the indictment was found, and the statute prescribes that the record of the return of indictments and the making of copies thereof shall be made by the clerk during the term at which such indictments are found. We can see no way in which the rights of the defendant were at all prejudiced, either by the form of this indictment or by the manner of its return, as indicated by the record, and the evidence adduced in the trial of the plea in abatement clearly shows that all the steps prescribed by the statute were taken in the finding and returning of the same.
The third, fourth, fifth and sixth assignments of error may be considered together. It appears from the record that, after the return of the indictment in this case, the names of certain witnesses were indorsed without leave of court, and, when the cause was called for trial, upon application of the county attorney, the court granted leave properly to indorse said names. This was a matter within the sound discretion of the. court; and, from a review of the proceedings had in this case, we cannot see that the rights of the defendant were prejudiced, or that there was any abuse of discretion in permitting the county attorney to indorse the names of these witnesses. (The State v. Reed, 53 Kan. 767; The State v. Price, 55 id. 606, 40 Pac. Rep. 1000.) Nor do we think the defendant was prejudiced by the refusal of the court to grant a continuance. While it is true that the first indorsement of these names was irregular, yet the record discloses that the attention of the defendant was thereby called to the witnesses, and the trial court was in a positon to judge from all the attendant facts and circumstances what was just in the premises. We are of the opinion, therefore, that’the court properly allowed indorsement of the names of the witnesses referred to; and permitted their testimony to be given and to stand in this case.
The seventh assignment of error is, that the court did not require the state to make its elections sufficiently definite and certain. The state elected to ask a conviction upon the first, second, fourth and fifth counts upon the testimony of Elias Davis and George Canfield. The testimony of these witnesses disclosed but one visit to the place in question and some four or five purchases of beer from the defendant at that time, and the time fixed was within the limitation of the statute, and the election was therefore sufficient to apprise the defendant of the sales relied upon. The same may be said of the election made by the state as to the sixth, seventh and eighth counts, where the testimony of Andrew Nelson is relied upon. This witness testifies to but one visit to the place in question, and to at least three distinct purchases from the defendant in person, and fixes the time of such purchases within the limitation of the statute. Upon the remainder of the counts upon which the defendant was convicted, the state relied upon the testimony of Florence Sigler and Hookerty Shields. Most of the testimony of these two witnesses was as to sales made not only by the defendant, but By others in his presence, and upon the theory that the defendant was the proprietor of the place where the liquor was sold ; and there was an abundance of testimony to support this proposition. The evidence shows that the place where this liquor was sold was practically a house of prostitution, and that the defendant assumed at various times to be the proprietor of the establishment; that he shared the profits of the business ; was present when most of the sales were made ; and in several of them was the active assistant, either in serving the liquor or removing empty bottles, glasses, etc. The evidence further shows that it was impossible to give the names of the persons to whom the specific sales were made, for the reason that persons frequenting such places were not apt to give their real names, either to the inmates or to other visitors; but the attention of the defendant was sufficiently called to time and place, so that we cannot see that he was not aware of the sales for which a conviction was asked or that the jury was in any way misled or the rights of the defendant in any manner prejudiced.
The views above expressed also dispose of the objection made by the defendant to the second, third and eighth instructions given by the trial court in this case. They clearly stated the law, and, when taken in connection with the other instructions, very correctly advised the jury of their duty in the case.
No material error appearing in this cause, the judgment is affirmed.
All the Judges concumng.
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The opinion of the court was delivered by
Clark, J. :
This was an action brought by the defendant in error, David T. Brown, against the plaintiff in error, The Atchison, Topeka & Santa Pe Railroad Company, in the district court of Atchison county to recover damages alleged to have been sustained by the plaintiff by reason of the wrongful acts of the servants, agents and employees of the defendant in ejecting him from a passenger-train of the defendant in said Atchison county on the 25th day of March, 1889. The plaintiff alleges that prior to receiving the injuries complained of he was a physician and earned the sum of $3,000 per year by the practice of his profession, and that as a result of said injuries he became permanently disabled and rendered incapable of attending to any business whatever; that he incurred and expended the sum of $100 for medical treatment and care ; that he was confined to his bed and to his house by reason of said injuries for a period of about two months, during which time he was unable to attend to any business whatever; that his time during' said period was well and reasonably worth the sum of $500, •and lie prays damages in the sum of $20,000. The jury returned a general verdict in favor of the plaintiff for $250, the items of which, as shown by the answers to special questions to the jury, were as follow's : For pain of body and mental anguish, $140 ; for medicines, $10; for the value of the services of the physician who attended him while he was endeavoring fo be cured of said injuries, $100.
Answrers were made by the jury to 128 special questions submitted by the parties to the action. The record contains but little of the evidence, and only that part thereof relating to the value of the services of the physicians who attended the plaintiff, and the amount expended by him in the way of medicines, nursing, etc., during the time he was confined to bis house, or while he was suffering from the injuries received by him. The evidence supports the findings of the jury as to the value of the services of the physicians and the necessary expenses incurred by the plaintiff in addition to the medical attendance received. The defendant moved for judgment on the particular questions of fact found by the jury, notwithstanding the general verdict, which motion was overruled by the court, and is the particular error complained of.
From the special findings of fact by the jury, it appears that on or about the 25th day of March, 1889, at about 9:45 p. m., plaintiff below, Dr. David T. Brown, entered a car of the plaintiff in error at Atchison to be transported thence to Nortonville as a passenger, having in his possession at the time a ticket which he in good faith believed entitled him to such transportation, and, when called upon by the conductor, he offered said ticket for his fare, but as a matter of fact said ticket wras not one entitling him to such transportation, and he was so informed by the conductor. Neither did th'e defendant in error produce and present a ticket from Atchison to any station upon the plaintiff in error’s railroad line, but the ticket so offered showed on its face that the holder was entitled to transportation over another and independent line of railroad from Atchison to Effingham. The conductor then demanded of the defendant in error the regular fare from Atchison to Nortonville, which was 50 cents, but he refused to make such payment, although he was financially able, and had sufficient funds with him at the time to have done so. He was then notified by the conductor that he must either pay his fare or get off the train ; that, unless he made such payment, he would be compelled to stop the train and put him off. The defendant in error then informed the conductor that if he got him off he would have to ’put him off. The train was then brought to a full stop, after which the conductor again requested him to pay his fare or get off the train without requiring force to be used, and informed him that he did not want to be compelled to lay hands upon him. The defendant in error still refusing to leave the train, the conductor then lifted him out of his seat and pushed him along the aisle to the door of the car, and while so doing nothing was said to the plaintiff- other than request him to get off without inviting the use of force. The defendant in error refused to move himself of his own volition, or to go, except as he was moved along by the conductor or brakeman, or both. He refused to walk off the platform and down the steps in the ordinary way of getting off the car, and the conductor pushed him from the platform, a distance of from three to four feet, to the ground, and he alighted on his feet and sank down to the ground. The brakeman took liold of his right arm and offered to help him up to his feet, but the defendant ordered him to let him alone and declined any assistance. The signal was then given to the engineer by the brakeman as directed by the conductor and the train was started on its course. Said removal from the train occurred about one-half mile from the limits of the city of Atchison. The weather was moderately fair and the defendant -in error walked back to the city that night. Doctor Linley, of Atchison, was called to see him a few days thereafter and pronounced his ailment of a temporary character. Neither the conductor nor the brakeman in removing him from the train had any motive in so doing other than to obey the rules and regulations made for them to follow in such cases.
No complaint is urged, save in the manner of defendant in error’s ejection from the platform of the car. The jury found that the conductor pushed him from the platform without notice or warning of his intention to do so, or without regard or care as to whether or not he would be injured, and in so doing used more force than was necessary, but how much' less force than was used would have accomplished the end desired does not appear. It further appears, that at the time of said ejection the defendant in error had in arms and hands a basket of flowers, a bandbox, a valise, and a hat; yet the findings show that the momentum which he received by being so pushed was not sufficient to cause him to plunge forward when he alighted on his feet, but, instead thereof, he sank down to the ground ; and this fact, coupled with the finding that neither the conductor nor brakeman had any malice toward the defendant in error, would negative the idea that any great amount of force was used, or in fact that much, if any, more force was used than was absolutely necessary to cause his removal from the platform of the car. As was said by Hammond, J., in Hall v. Railroad Co., 15 Fed. Rep. 57:
“The courts will not, where the passenger is in the wrong, tolerate any nice discrimination about the force necessary to secure submission to the conductor’s lawful authority and overcome the resistance, unless it may be where the conductor departs from the exercise of lawful force, and beats, wounds or maltreats the resisting passenger in the ill temper of belligerency. . . . A resisting passenger cannot expect the courts to erect delicate scales on which to weigh with exact nicety the force used to overcome his resistance.”
It is difficult to ^ascertain from the findings of fact the precise nature of the injury received by the plaintiff below. The jury found that he was made “ some sick, lame and sore” by being pushed from the platform, and that a few days thereafter he passed bloody urine, which would indicate that the injuries were occasioned by the jar produced when his feet came in contact'with the ground after being pushed from the platform, a distance of from three to four feet; but whatever injury he may have sustained was of a temporary nature, and so slight that the jury declined to make any allowance for injury to his person or for loss of time.
When the plaintiff below ascertained that the ticket held by him did not entitle him to transportation over defendant’s railroad, it was his duty, upon request of the conductor, either to pay his fare or voluntarily leave the train after it had stopped at a suitable place for that purpose, and when he refused so to do he became a trespasser, and the conductor might lawfully eject him from the train. The injuries sustained by him were occasioned by his refusal to comply with the repeated requests, lawfully made by the conductor, that he pay his fare or leave "the train without requiring the use of force. The train was stopped from three to five minutes for the purpose of removing him therefrom — surely ample time to have enabled him to alight with absolute safety ; but the conductor was forced to lift him from his seat and push him along the aisle, out on the platform ; and when they arrived on the platform he refused to walk down the steps in the ordinary way of getting off the car. He seemed utterly indifferent as to whether or not he would receive any injury from the exercise of that force which he was inviting to cause his ejection, and probably entertained the erroneous idea that in order to recover damages from the railroad company it was necessary for him at least to passively resist being ejected, and that, if personal injury resulted therefrom, even by the exercise of ordinary care on the part of the employees of the railroad company, his claim for'damages would be correspondingly increased. In A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608, our supreme court held that if a person is a trespasser on the train, the conductor has a right to eject him, and that the railroad company can only be made responsible for the injuries inflicted which are wilful, wanton, or malicious. The jury in this case found that the conductor did not push the defendant in error from the platform wilfully or maliciously, but that he did so wantonly. The facts as disclosed by the other findings of the jury as above outlined sustain this general finding that such act was not done wilfully or maliciously, but do not in our judgment sustain the general verdict in favor of the plaintiff below, and they virtually negative the general finding that the conductor pushed the defendant in error from the platform wantonly ; hence we do not hesitate to characterize such finding as merely a general conclusion, incorrectly drawn by the jury from the other more specific findings of fact; and, under the rule laid down in A. T. & S. F. Rld. Co. v. Plunkett, 25 Kan. 188, such general finding or conclusion may be wholly ignored. With this eliminated, the plaintiff in error was entitled to judgment on the special findings of fact, the general verdict to the contrary notwithstanding, and the court below erred in overruling its motion for such judgment.
Because of such error the judgment of the court below will be reversed, and the cause remanded with directions to enter judgment upon the special findings of fact in favor of the defendant in that court.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
The plaintiff in error, who was plaintiff below, claims to be the owner of a tract of land in Lincoln county, and brings this action/to recover possession of a deed as the evidence of her title thereto, which she alleges is wrongfully detained from her by the defendant. The land formerly belonged to one George S. Donavan, now deceased, who died intestate, by his own hand, some time in July, 1889. After he had formed the purpose to take his own life, he signed and acknowledged a warranty deed in the usual form, purporting to convey the farm upon which he was then living to the plaintiff. This deed was found in a stand or table drawer in his house, and with it a letter to his father, the defendant, requesting him to have it recorded, and then to give it to the plaintiff as a voluntary gift to her. It does not appear that any one had any knowledge, prior to Donavan’s death, of the making of this deed, except the register of deeds of the county, who had written it, and before whom it was acknowledged.
Upon the above facts, the question arises whether the plaintiff acquired any interest in the land described in the deed, so as to entitle her to its possession, as the evidence of her title. It is elementary law that the delivery of a deed is as essential to its validity as the signature of the grantor. Whether a delivery was in fact made in any particular case depends largely upon the intention of the grantor, which must be judged of by his acts and conduct. A delivery may be effected by words or by acts, or by both combined, provided such words or acts are consistent with an intention on the part of the grantor to surrender all further control and power of disposition of the instrument. It is not necessary that the grantee be given actual, control before a delivery can be said to have been made ; it is only essential that there be the voluntary parting with control by the grantor; and this may be effected by a delivery to a depositary under such conditions as to make it irrevocable ; or it may be even by a retention of actual possession of the instrument by the grantor, when such possession is accompanied by words clearly indicating that it is retained by him as a mere custodian for the grantee. Hence, what particular act will be held to constitute a valid delivery depends largely upon the facts of the case in which such act is relied upon. In this case there was no manual delivery of the deed to anyone during the life of the grantor ; consequently many of the authorities cited by the plaintiff in error are in applicable, because they are decisions which, were made in cases where there was an actual parting by the grantor with the possession of the instrument of conveyance either to a depositary or to some other third person. The delivery must also be complete during the life of the grantor. There can be no delivery by a dead hand. When a deed is found in the possession of the grantor at the time of his death, the presumption of the law is that it was not delivered; and this presumption becomes conclusive in the absence of evidence showing that a delivery had actually been made. (Burton v. Boyd, 7 Kan. 17.)
There is no evidence in this case tending, even remotely, to show that George S. Donavan intended to convey the title to his farm, or to part with full control of the deed, so long as he lived. Had he, after making the deed and returning to his home, changed his purpose as to the taking of his life, or had he, for any reason, not succeeded in that purpose, it is perfectly clear that he could have canceled the deed without any right of complaint from any source whatever. Up to the moment when he drew his last breath, the same hand that signed the instrument could have destroyed it. The letter to his father, as well as one to the plaintiff, plainly indicated that, so far as the matter of delivery was concerned, he had no thought or intention of a delivery, for any purpose whatever; until after his death. The only words which can be claimed to show an intention to deliver the deed are contained in these letters, which were undivulged during life, and were without legal force or effect when they were communicated as the last words of a dead man ; and the only act that can be claimed as intended in any way to operate as a deliv ery was the act requested to be done by, the defendant — to have the deed recorded, and to hand it to the plaintiff, after his death.
On proofs of the facts as narrated in this opinion, the trial court sustained a demurrer to the plaintiff’s evidence. We think the court correctly so ruled. (Stone v. French, 37 Kan. 145; Provart v. Harris, 150 Ill. 40; Lang v. Smith, 37 W. Va. 725.) The plaintiff’s own evidence shows clearly and conclusively that there was no delivery of the deed; that the farm, together with the claimed instrument of conveyance, passed to the heirs at law or the legal representatives of Geo. S. Donavan at the time of his death; and that the plaintiff has neither title to nor right of possession of either land or deed.
The judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
(xllkeson, P. J. :
The plaintiffs in error contend that, by reason of the terms of the lease, Kalebaugh having the right to renew the same on March 1, 1890, for a further period of two years, and having remained upon the land for some time after March 1, 1890, this gave him the right to the crop, and that his mortgagees succeeded to his rights by virtue of the mortgage. We cannot agree with plaintiffs in error. In Smith v. Hague, 25 Kan. 246 — a case where a crop of wheat was planted upon the land after a judgment had been rendered decreeing a foreclosure of the vendor’s lien against the land and ordering that it be sold to satisfy such lien, and under such order of sale the land was sold before the crop was ripe or harvested — it was ruled that the crops which were then growing upon the land, and not reserved in the order of sale, or at the sale, passed by the sale and deed of conveyance of the sheriff. In Beckman v. Sikes, 35 Kan. 120, Mr. Justice Johnston, in delivering the opinion of the court, says :
“The fact that the mortgagor or judgment debtor sold the growing crop prior to the sheriff’s sale of the land . . . does not vary the case, because he could not pass a title greater than his own, and therefore Sikes obtained no better right to the growing crop than Baker had or could give.”
Of course the mortgage, as well as the judgment decreeing a foreclosure, was only a lien upon the land, and did not confer title. The title and right of possession remained in the mortgagor until the sale and conveyance of the land. Until that time he was entitled to the use of the land, and to all the crops grown thereon that had ripened and were severed. The lien of the mortgage and judgment, however, attached to the growing crops until they were severed, as well as to the land. The mortgagor planted the crops knowing that thej'- were subject to the mortgage and liable to be divested by the foreclosure and sale of the premises. Any one who purchased such crops from him took them subject to the same contingency, as the recorded mortgage and the decree of foreclosure were notice to him of the existence of the lien. If the land be not sold until the crops ripen and are severed, the vendee of the mortgagor would ordinarity get a good title; but if the land was sold and conveyed while the crops were still growing, and there was no reservation or waiver of the right to the crops at such sale, the title to the same would pass with the land.
But the plaintiffs in error contend that this case (Beckman v. Sikes, supra) does not apply. There the sale was made by the mortgagor; here it was made by the tenant of the mortgagor. We cannot understand how this could change the rule laid down in the case. If the mortgagor’s title was limited and restricted by the mortgage and judgment, his lessee had no greater title than he could give. . The record of the mortgage implied notice to him, and Shockey and Snider could obtain no greater right to the crops than Kalebaugh had, and in the case at bar they not only had the notice of the recorded mortgage and decree of foreclosure, but of the sale (which it is presumed was made, as required by law, upon published notice) that occurred some days before they obtained their mortgage.
It is further contended by plaintiffs in error, that Kalebaugh was not made a party to the foreclosure suit; hence the rule is changed. We think not. The right of the purchaser was not and could not be defeated by reason of the lease, or by the fact that the possession was in or that the crops were grown by the lessee. The right to the possession and the right to the growing crops passed to the purchaser. If the tenant had been a party to the foreclosure suit, the possession and the crops could have been delivered to him by process under that judgment; but, since he was not made a party thereto, he cannot obtain that remedy except by some other action. The purchaser’s rights, however, are just the same as they would have been if the tenant had been made a party. It follows, therefore, that Malott, by his purchase and sheriff’s deed, became the absolute owner of the premises, in- eluding the crops growing thereon. (Downard v. Goff, 40 Iowa, 579; Goodwin v. Smith, 49 Kan. 351.)
The judgment in this case will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from summary judgment in favor of the claimant in a workmens compensation proceeding for a lump sum award under K. S. A. 44-512a.
On July 24, 1973, the trial court, upon appeal from a limited award of compensation entered by the director of compensation, found that appellee George Scott was totally and permanently disabled as a result of accidental injury arising out of and in the course of his employment with Day and Zimmerman, Inc., and it awarded compensation to Scott accordingly. Upon appeal by the employer and its insurance carrier to this court the judgment was affirmed (Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 529 P. 2d 679).
The facts pertinent to this appeal are -undisputed. On August 16, 1973, there was due appellee from appellants under the foregoing judgment unpaid compensation in the amount of $5,489.00. Request by appellee for this amount was duly made by written demand served upon appellants August 17, 1973. The twenty day period provided by K. S. A. 44-512a for payment of the delinquent amount expired Thursday, September 6, 1973. Payment was not made within this period and appellee filed his petition for the total award Friday, September 7, 1973. The current amount due in weekly payments under the demand was tendered by appellants on Monday, September 10, 1973, but was declined by appellee.
In their answer to appellee’s 512a petition appellants explained their failure to pay appellee the sum due during the twenty day period: Shortly after the written demand was served Day and Zimmerman’s insurance carrier, appellant Liberty Mutual Insurance Company, forwarded to appellants’ then counsel certain drafts for delivery to appellee (present counsel for appellants entered the litigation in Scott v. Day and Zimmerman, Inc., supra, only after judgment was rendered and notice of appeal was filed in this 512a case); upon receipt of such drafts appellants’ attorneys determined they were not drawn for the proper amount due; by telephone appellants’ attorneys requested confirmation from appellee’s lawyers of the proper amount but this confirmation was refused until after the drafts were delivered; on August 28 and 29, 1973, additional drafts were sent by Liberty Mutual to appellants’ attorneys for delivery to appellee; these drafts were received by appellants’ attorneys August 29 and 30, 1973, but were “inadvertently placed in the file concerning said case in the office of defendant’s attorneys and were not tendered to plaintiffs attorney until September 10, 1973. . . .”
Appellants’ first point on appeal is that the judgment of the trial court is void because the court did not, either orally or in writing, state the controlling facts upon which appellee’s motion for summary judgment was decided, contrary to K. S. A. 60-252 (a) and rule 116 of this court (214 Kan. xxxvii). Ry its own terms 60-252 (a) exempts summary judgment from its requirement that the trial judge state the controlling facts, this, of course, for the reason rendition of summary judgment is improper if the controlling facts are in dispute (it has been said that findings may well be helpful in making clear the basis for ihe trial court’s decision and in indicating what that court understood to be the undisputed facts on which summary judgment was granted [9 Wright & Miller, Federal Practice and Procedure: Civil §2575, pp. 692-693]).
Rule 116 is broader than 60-252 (a) in that it requires that in all contested matters submitted to a judge without a jury, the judge shall, in addition to stating the controlling facts required by 60-252, briefly state the legal principles controlling the decision (see Duffin v. Patrick, 212 Kan. 772, 512 P. 2d 442). In the case at bar the only judgment made by the trial judge consisted of the following entry in his minutes:
“1-2-74 The Court having received the briefs of the parties, reviewed the record and authorities, and being fully advised, finds that ‘if compensation awarded is not paid when due, and service of written demand for payment has been made on the employer and its attorney of record, and said demand for payment . . . not made within 20 days from the date of service of the demand, the entire amount awarded shall become immediately due and payable.’ The motion for summary judgment is sustained.”
The last sentence above was recorded on the appearance docket and the amount of the total lump sum due appellee from appellants was entered in the judgment docket with the proper date and names of the parties. Appellants assert the court violated both the statute and the rule but they make no statement or showing they were left in the dark as to why the court ruled as it did.
If our record on appeal is correct part of the court’s statement was somewhat garbled — obviously what was meant within the court’s quotation marks was the provision of K. S. A. 44-512a that where “payment of said demand is thereafter . . . not made within twenty (20) days from the date of service of said demand . . . the entire amount of compensation awarded . . . shall become immediately due and payable”. In effect the trial court was saying, “The statute fits — it is applied”. We think the notation constituted substantial compliance with the rule — in any event our review is not inhibited by lack of a more comprehensive statement so no prejudice results.
Appellants’ other contention is that the trial court erred in holding K. S. A. 44-512a applicable in the light of the factual allegations contained in their answer. Essentially they say there was no- deliberate refusal or failure to pay within the twenty day period, rather the failure was the result of an inadvertent mistake and it is inequitable and unfair to apply 512a.
K. S. A. 44-512a (since amended) provided:
“That if any compensation awarded, agreed upon or adjudged under the provisions of the workmen’s compensation act of this state or any installment thereof shall not be paid to the employee or other person entided thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same and on the attorney of record of such person, firm or corporation, payment of said demand is thereafter either refused or not made within twenty (20) days from the date of service of said demand, then the entire amount of compensation awarded, agreed upon or adjudged shall become immediately due and payable and said employee or other person entitled to said compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt.”
Appellants admit that a specified amount of compensation was due and owing and that payment was not made within the twenty day period following service of the written demand. The insurance carrier did make an effort to comply with the demand but through error and inadvertence of appellant’s counsel timely payment was not made. Preliminarily, it may be noted that under K. S. A. 44-512a neither the claimant in a workmen’s compensation proceeding nor his counsel was under obligation to advise the employer of the exact amount of compensation due (Ryder v. Reagor, 213 Kan. 576, 516 P. 2d 990). Thus the failure to make timely payment is solely chargeable to appellants. In Casebeer v. Alliance Mutual Casualty Co., 203 Kan 425, 454 P. 2d 511, this court stated:
“. . . Without deviation, it has been' held that if any compensation awarded shall not be paid when due, then, following service of the written demand provided for, continued nonpayment for twenty days thereafter accelerates the entire amount of compensation awarded, which immediately becomes due and payable, and the person entitled thereto may maintain an action to recover the specific amount in like manner as for the collection of a debt. [Citations.]
“The statute is the declared public policy of the state that compensation awards shall be promptly paid, and is the means selected by the Legislature to insure their enforcement and applies to all awards or judgments without the slightest qualification.” (p. 431.)
The statute is applicable if after demand payment is “either refused or not made” (emphasis supplied) within twenty days. Appellant seeks to engraft an exception to its mandatory terms whereby failure to make timely payment may be excused for justifiable cause. The same argument was advanced and rejected in Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267, wherein it was stated:
“Next it is argued that the statute should be construed as contemplating the phrase ‘payment of said demand is either refused or not made’ as meaning ‘payment of said demand is refused or without cause is not made.’ We think such a construction would read into the statute something that is not there. Even so there is no necessity for laboring the point. The answer to this contention appears in syllabus 3 and corresponding portions of the opinion (p. 289) [Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168] where it is held and said that a failure to pay any part of the compensation awarded when due, including medical expenses, within two weeks from the date of service of the written demand, makes the entire amount of compensation awarded immediately due and payable.” (p. 665.)
Appellants rely primarily on our holding in Kraisinger v. Mammel Food Stores, 203 Kan. 976, 457 P. 2d 678, to support the proposition that where equity and fairness require, the mandatory language of the statute will not be followed. There the respondent’s insurance carried had attempted to pay the award of compensation. It inquired of a medical center whether there was any outstanding balance in claimant’s compensation account and had received a negative reply. Due to clerical error at the medical center a $75.00 charge had been posted to claimant’s personal account instead of his compensation account which was being paid by the insurance carrier. The $75.00 bill remained unpaid. Thereafter claimant made a 512a demand for compensation due. After the statutory period had elapsed respondent and the insurance carrier were initially informed of the $75.00 delinquency. After receipt of the medical center’s explanation of the clerical error respondent paid the amount due. This court denied recovery of a lump sum judgment under 512a because when the demand letter was served on respondent there was a zero balance owed at the medical center by reason of the clerical error; the medical center’s mistake in thus admitting that payment had been made was held to be equivalent to an admission by claimant of payment and nothing was due in the eyes of the law.
In the recent case of Ryder v. Reagor, supra, this court iterated the explicit mandatory nature of K. S. A. 44-512a and that the employer has the burden of avoiding its effects after demand. We further said:
“We need not discuss our holding in Kraisinger v. Mammel Food Stores, 203 Kan. 976, 457 P. 2d 678, or Criss v. Folger Drilling Co,, supra. It is sufficient to say that each is ‘indicative of the law as applied to the factual situations there confronting the court.’ (Criss, supra, p. 555.) Moreover, those cases stand for the proposition that neither an employee nor his counsel can affirmatively mislead the employer and his insurance carrier as to the facts surrounding payment of medical charges, and take advantage of a failure to pay such expenses within the statutory period.” (p. 579.)
Appellee here had nothing to do with the error which resulted in nonpayment within the statutory period. That lay solely on the other side.
We note the legislature has recently enacted major changes in the workmen’s compensation act (Laws 1974, Chap. 203). That portion pertinent to delinquent payment was amended (§20) and currently appears as K. S. A. 1974 Supp. 44-512a. Provision is made for civil penalties to be assessed against an employer or its insurance carrier for failure to make timely payments of compensation after demand for the same but the act contains nothing by way of excusable cause for failure to pay within the prescribed twenty days. The legislature did not alleviate the strict mandate of the former act and the operational words “payment . . . not made” are retained as before.
Under the undisputed facts the trial court properly applied the statute. Judgment affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fontron, J.:
This is an action to recover damages for personal injuries resulting from an assault and battery upon the plaintiff, Loren Carrick. The defendants originally were B. J. McFadden and Ronald McFadden, father and son. The jury returned a verdict in plaintiff’s favor for actual and punitive damages against B. J. McFadden only, the court having previously dismissed the case as to Ronald McFadden. Judgment was entered on the verdict against B. J. McFadden and he has appealed. The plaintiff has filed a cross-appeal.
The lawsuit grows out of an incident occurring February 13, 1972, on land owned by B. J. McFadden, a pipeliner and farmer. The plaintiff and three companions were hunting coyotes that day with their dogs, traveling in two trucks. Loren Carrick and a retarded youth were riding in the Carrick truck, in the back end of which the hunting dogs were caged, while Lewis Zane and Lemoin Carrick, the plaintiff’s brother, were in the other truck, belonging to Mr. Zane. None of the hunters were armed.
What occurred during the incident was sharply disputed. According to plaintiff and his two witnesses, Lemoin Carrick and Lewis Zane, they thought the land onto which they drove belonged to Mr. Jarboe, whose foreman had given permission to hunt thereon. The testimony of all three was to the effect the land was in wheat stubble and that it was not fenced or posted in any way. They saw no growing wheat or cattle on the north part of the section where they were, although the McFaddens said part of the section was in wheat, was being pastured by their cattle, and that many of the cows were calving.
All witnesses testified that Loren’s truck was first in the field, followed by Zane’s, and that the McFaddens followed them onto the land. Mr. Zane and Lemoin Carrick said that as the McFaddens pulled even they yelled for Zane to stop; that Zane stopped his truck and as the McFaddens drove on he radioed ahead to Loren that a guy was coming and to stop; and that Loren then turned around and started back to meet the McFaddens. Zane, Loren and Lemoin all testified that the two trucks stopped opposite each other; that JB. J. McFadden immediately got out of his truck with a rifle; that he went over to Loren’s truck and struck Loren on and about the head with the rifle barrel. The plaintiff himself testified that after being struck on the temple he recalled nothing further about the events of that afternoon.
Lemoin Carrick and Lewis Zane testified that on seeing Loren attacked they drove to the scene; that as they reached the two trucks B. J. McFadden had the door of Loren’s truck open and was choking Loren as he sat in the truck; that Ronald had possession of the rifle by that time and told them not to come any further. Despite this warning Lemoin and Zane hurried over to the truck and attempted to pull B. J. McFadden away from Loren but were unable to do so until Ronald finally yelled at his father to stop. B. J. McFadden then loosened his strangle hold, picked up his rifle, cursed the lot of them and told them all to get off his place and stay off. Whereupon, all of them left without further ado. Loren had to be carried into his home when he arrived there.
The version given by the McFaddens was entirely different. They testified in substance that B. J. McFadden told plaintiff, when the two trucks stopped, that he did not allow hunting and he wished they would get off his property; that plaintiff thereupon got out of his truck, grabbed B. J.’s arm, which was stroking out the window of his truck and called him some nasty names; that as Mr. McFadden fell from his truck and onto the ground he grabbed the rifle (apparently unloaded), which he was carrying in the truck, and jabbed it into plaintiff’s stomach; that a struggle between B. J. and Loren ensued over the gun, during which the butt of the gun hit Loren’s chin; and that Mr. McFadden threw the gun down and shoved and pushed the plaintiff back into his truck. Ronald testified that he picked up the gun and held it, and when the other man came up he told him to stop and stand back so there could be a fair fight — that it wouldn’t be two on one.
There is a good deal of evidence, including medical, that Loren Carrick sustained considerable physical and emotional damage from his injuries, but the same need not be spread on the pages of this opinion.
B. J. McFadden lists four points on appeal but briefs the last point but briefly. His first claim of error pertains to the exclusion of evidence relating' to plaintiffs alleged character or propensity for violence.
In a pretrial order the court ruled that since the parties to the altercation were strangers each other, evidence on behalf of either party as to the violent propensities or character of the opposing parties was not admissible, and that evidence of prior fights or altercations would not be admitted. At the beginning of the trial defense counsel made an oral proffer that five witnesses, whom he named, had been subpoenaed who would testify as to previous fights in which the Carrieles had been engaged and as to their character and propensity for violence. At this time the court reiterated its ruling contained in the pretrial order.
In our opinion the court erred in concluding that none of the proffered testimony was admissible.
The following statutes are pertinent to the point in issue:
K. S. A. 60-446. “When a person s character or a trait of his character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct, subject, however, to the limitations of sections 60-447 and 60-448.”
K. S. A. 60-447. “Subject to section 60-448 when a trait of a person’s character is relevant as tending to prove his conduct on a specified occasion, such trait may be proved in the same manner as provided by section 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible. . . .”
K. S. A. 60-448. “Evidence of a trait of a person’s character with respect to care or skill is inadmissible as tending to prove the quality of his conduct on a specified occasion.”
In his commentary on 60-447 of his work, Kansas Code of Civil Procedure, annotated, p. 439, Judge Spencer A. Gard says:
“The opening words of this section, ‘when a trait of a person’s character is relevant’ etc. save the section from changing the established law on the subject of relevancy. For instance, in civil cases evidence of character is usually not available as proof of conduct on a given occasion. There are exceptions, however, to which the rules of this section are applicable. In the assault and battery case character evidence is admissible on the issue of who was the aggressor. Glahn v. Mastin, 115 K 557, 224 P 68.
“Where personal violence is involved reputation as peacable [sic] and law-abiding citizen is admissible. Revere v. Revere, 115 K 575, 223 P 1103.”
This construction of the statute accords with the general rule on the subject. In 1 Jones on Evidence, 6th Edition 1972, § 4:40, the prevailing rule is phrased:
“In a civil action for assault and battery evidence of reputation and character of the parties for peace and quiet is competent, not to establish guilt or innocence, but to resolve the question as to which was the aggressor where that is disputed and defendant pleads self defense.” (p. 462.)
In an annotation found in 154 A. L. R. 121, Evidence — Reputation — Assault, § lib, p. 134, the rule is formulated in these words:
“Where the evidence is conflicting on the point as to which party was the agressor, evidence of plaintiff’s character or reputation for turbulence and quarrelsomeness is admissible, apparently without regard to whether the defendant has pleaded self-defense, and even if the defendant did not know of such character or reputation. . . .”
Although we find no case squarely in point from our own jurisdiction, the early case of State v. Spendlove, 44 Kan. 1, 24 Pac. 67, appears to come very close. In that case the defendant requested the court to give the following instruction:
“ ‘If the evidence leaves you in doubt as to what the acts of the deceased were at the time, or immediately before the killing, you may consider the threats and character of the deceased in connection with all the other evidence, in determining who was probably the aggressor.’ ” (p. 5.)
On appeal this court held it was reversible error to refuse the instruction. See, also, Glahn v. Mastin, 115 Kan. 557, 224 Pac. 68.
As we have already noted, the evidence ás to how the violence began was highly conflicting. Members of each group charged members of the other group with initiating the turbulence — with being the aggressors. Hence, reputation or character was relevant on the issue of who was the aggressor; who started the fight. In our judgment the trial court erred in excluding testimony offered on that point.
The plaintiff questions the sufficiency of the proffer made on behalf of the defendants. The governing statute is K. S. A. 60-405, which provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous 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.”
This provision first appeared on the statute books as a part of the Code of Civil Procedure (L. 1963, ch. 303) to become effective January 1, 1964, and this court has had few occasions to consider it. However, Judge Gard, in his work on the code, has this to say concerning the requirements of the section:
. A formal offer of proof is not necessary if the basis of the objection to the exclusion of the evidence is made known in such manner as to indicate the evidence which is desired. . . .
“. . . At the trial stage this section makes it necessary that the appellant make an adequate record of what he wants to introduce, no particular form being required. No formal offer is necessary if some other method of making the record is as good or better.” (p. 368.)
In Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P. 2d 104, we said of a proffer made in that case:
“. . . The proffer was in keeping with the requirements of K. S. A. 60-40S, that the proponent of the excluded evidence make known the ‘substance’ of the expected evidence.” (p. 823.)
It is true that counsel made the proffer orally rather than in question and answer form. However, what oounsel said in making the proffer was recorded verbatim and the same is included in the record before us. The proffer informed the corut that the witnesses would testify generally as to the character of the plaintiff being violent. Thus the substance o,f their expected evidence going to the plaintiff’s character was made known, even though evidence of specific instances not resulting in convictions is not made admissible by 60-447. While the proffer might well have been made less broadly, we are not prepared to say it was insufficient under the circumstances of this case.
Besides, the trial court having already ruled in the pretrial order that character evidence would not be admitted since the parties were strangers, any proffer might well have been only a futile gesture. In Aspelin v. Mounkes, 206 Kan. 132, 476 P. 2d 620, we said of a similar situation:
“Appellants failed to make a proffer before the trial court of that which they expected to show by the deposition; however, in view of the reason given in sustaining the objection any proffer may well have been futile..... (p. 137.)
The plaintiff says in his brief that when the judge ruled on the McFadden proffer he had before him depositions from three of the witnesses whose testimony was proffered, and that their depositions contained no such opinions as defense counsel had stated at the time of the proffer. However, neither the depositions nor their substances are found in the record. Thus they are not available for our consideration. Furthermore, two of the witnesses named in the proffer had not even been deposed.
The second point advanced by the defendant is this: Evidence going to the good character of Mr. McFadden was erroneously excluded. We do not read the record that way. The court’s ruling reads as follows:
“Now, character testimony that merely shows the people or parties to be fine, upright citizens, of a peaceful nature, and such, will be admissible to the extent that it becomes relevant in the course of the trial.”
So far as the record is concerned no evidence going to B. J. McFadden’s good character was ever offered at the trial.
For his third point, Mr. McFadden argues the coin! erred in instructing the jury as to the allowance of punitive damages. We believe the argument lacks merit. There was an abundance of testimony introduced by the plaintiff which if believed, as apparently it was, disclosed a willful, wanton and malicious attack on Loren Carrick at the time he was sitting in his truck.
It is the general rule that exemplary damages are recoverable in an action for personal injuries based upon tortious acts which involve elements of malice or a wanton and reckless disregard of the rights of the plaintiff. (22 Am. Jur. 2d, Damages, § 243, p. 334.) In Sweaney v. United Loan & Finance Co., 205 Kan. 66, 74, 468 P. 2d 124, this court said:
“. . . Generally, the intentional doing of a wrongful act with full knowledge of its character, and without cause or excuse, is malicious and warrants an award of exemplary damages. . . .”
We have specifically held that damages are recoverable for an unlawful, forcible and malicious battery, even though the wrongful act might also have been in violation of a criminal statute. (Wiley v. Keokuk, 6 Kan. 94; Titls v. Corkins, 21 Kan. 722; Jockers v. Borgman, 29 Kan. 109; 22 Am. Jur. 2d, Damages, § 246, p. 338.) Malice may be implied from the intentional doing of a wrongful act. (Reynolds v. Guthrie, 145 Kan. 315, 321, 65 P. 2d 272.)
The defendant complains that no evidence of his financial condition was admitted at the trial, but the record does not show that evidence of this kind was offered. We are cited to no rule of law requiring that evidence of the defendants’ financial worth be introduced before an issue of punitive damages may be submitted to the jury. This court has said that where exemplary damages are properly in issue, evidence going to the defendant’s financial condition is admissible. (White v. White, 76 Kan. 82, 87, 90 Pac. 1087; Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 499; 241 P. 2d 1192.) Our rule accords generally with that which prevails in a majority of jurisdictions. (9 A. L. R. 3d: Anno., Punitive Damages —Financial Worth, pp. 695-701.) However, we have not gone so far as requiring evidence as to defendant’s wealth and see no good reason for extending the rule.
As his fourth point the defendant somewhat casually mentions the subject of remittitur, without pointing out in what respects or in what amount the verdict is excessive. However, we need spend no further time on this point since the case must go back for a new trial.
As we have previously stated, the plaintiff has filed a cross-appeal. The notice states his cross-appeal is “from the Order on Plaintiff s Motion for costs involved in the taking of certain depositions, where Defendants witnesses failed and refused or were absent from such scheduled and noticed depositions.”
K. S. A. 60-2103 (h) reads in part:
“The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, . . .”
This provision of the present statute has not been subjected to construction, but under its predecessor, G. S. 1949, 60-3306, this court was consistent in holding that rulings which had not been specified in the notice of appeal presented nothing for appellate review. (See 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 116.) In Gard, Kansas Code of Civil Procedure, §60-2103 (b), p. 771, the following commentary is found:
“The requirements for the content of the notice of appeal are substantially the same as under the former procedure. ...”
We shall therefore confine our consideration of the cross-appeal to the matter stated in the notice.
The record reveals that counsel for the McFaddens gave notice that on June 20, 1973, Dr. Lyle Glenn, Eddie Bennett and Chester Daley would be deposed at 10 a. m. in Coldwater, Kansas, and Le-Roy Shelton would be deposed at 1 p. m. of the same day. At the appointed hour Dr. Glenn was out of town, Eddie Bennett was incarcerated in a Colorado penitentiary and Chester Daley had departed this life nine months previously. The day was not entirely wasted, however, since Dr. Glenn’s office secretary consented to be deposed for the purposes of obtaining medical records pertaining to Loren Carrick and of obtaining her personal opinion as to the character of that gentleman. Mr. Shelton, it turned out, was still in the community, custom cutting wheat, and his deposition was also taken — somewhat ahead of the time it had been originally scheduled.
Carrick’s motion to assess costs was taken up just before McFadden’s motion for new trial was argued. At this time the trial court observed that the firm representing defendants was careless in scheduling the depositions and “this practice constitutes some sort of harrassment and is an abuse of discovery” but ruled that inasmuch as two depositions had been taken on the day in question, nothing more would be done at that time “except to censure the firm for their activity along these lines. . . .”
We can understand the concern of an attorney who has responded to a notice to take a deposition when he discovers, on arrival at the appointed place, the opposing counsel has not done his homework, and that the witnesses to be deposed are not on hand. In western Kansas distances are especially long and tiresome, and responding to a false alarm can be expensive as well as physically wearing. However, the trial court’s warning should have sufficed to take care of the particular situation before it, and we will not fault the court in failing to assess costs under the circumstances.
The judgment of the trial court is reversed as to the appeal and affirmed as to the cross-appeal, and this cause is remanded with directions to grant a new trial.
It is so ordered.
Fbomme, J., not participating.
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The opinion of the court was delivered by
Owsley, J.:
The plaintiff, John C. Bias, Jr., brings this action against the defendant, Montgomery Elevator Company of Kansas, Inc., for personal injuries sustained when he was a passenger in a falling elevator at St. Francis Hospital in Wichita, Kansas. Plaintiff relies on the doctrine of res ipsa loquitur to establish the negligence of defendant who was responsible for the maintenance of the elevator under an exclusive service contract. The trial court held res ipsa loquitur was not applicable and sustained a motion for a directed verdict at the close of plaintiffs evidence. Plaintiff appeals from this judgment.
The elevator, which was automatic, was installed by the manufacturer, Otis Elevator Company, in May, 1958, and at the time of the accident was owned by the hospital. Plaintiff entered the elevator on the fourth floor. When the elevator stopped at the second floor he heard a “crack” or “pop” over his head and the elevator fell to the bottom of the shaft in the basement, resulting in his alleged injuries.
Alvin Fisher, an employee of defendant, testified that he personally maintained and serviced the hospital’s elevators -under a full maintenance contract with the hospital requiring defendant to check all parts, oil, grease, lubrication, contact switches, motors, generators, and machines. There were eighteen elevators at St. Francis Hospital under contract with defendant and they were serviced every week. No one was authorized to do any maintenance or repair work on these elevators other than defendant. Fisher stated defendant was responsible for the complete supervision and control of the maintenance, repair and operation of the elevators.
An examination of the records of defendant verified that on July 3, 1970, defendant was called to repair this elevator because the doors were not operating properly. It was the only indication of any problem with this elevator prior to the accident.
Fisher testified that after the accident he checked the switches in the elevator and there was nothing mechanically wrong; however, neither the governor switch nor the contact switches had been tripped by the falling elevator. The governor switch and contact switches are safety devices which cause the elevator to stop automatically if it overspeeds.
As to the cause of the accident, Fisher could only speculate, although he did point out that the unit worked properly both before and after the accident. A thorough inspection revealed nothing which might explain such an occurrence, and no repairs were needed to put the elevator back in service after the accident.
Plaintiff contends under normal circumstances an automatic passenger elevator would not fall as it did on this occasion unless there was negligence on the part of defendant. This argument raises the question of the applicability of res ipsa loquitur against an elevator maintenance company for an injury caused by a defective elevator.
The doctrine of res ipsa loquitur has been construed and applied by this court in a vast number of cases and under widely divergent factual situations. The phrase is commonly understood to mean “the thing speaks for itself.” It is intended to operate solely as a rule of evidence rather than as substantive law. (Chandler v. Anchor Serum Co., 198 Kan. 571, 426 P. 2d 82.) Essential to the application of the doctrine in any given case are three conditions. First, it must be shown that the thing or instrumentality causing the injury or damage was within the exclusive control of the defendant. Second, the occurrence must be of such kind or nature as ordinarily does not occur in the absence of someone’s negligence. Third, the occurrence must not have been due to the contributory negligence of the plaintiff. (Vieyra v. Engineering Investment Co., Inc., 205 Kan. 775, 473 P. 2d 44; Blue Stem Feed Yards v. Craft, 191 Kan. 605, 383 P. 2d 540.)
The rationale behind the doctrine is said to be that when the defendant has exclusive control of the instrumentality he has it within his power to produce evidence of the cause of the injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances. (Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501.)
Testing the evidence produced in the instant case against the necessary elements for invocation of the doctrine, we conclude the trial court was correct in ruling this case was inappropriate for submission to the jury solely on thé theory of res ipsa loquitur. We agree with plaintiff that an elevator would not ordinarily fall unless someone was negligent; however, plaintiff has the burden of showing that the negligence can reasonably be attributed to defendant. This can be accomplished by showing that defendant had exclusive control of the instrumentality.
As to the nature of the requisite control, it has been held that the word “exclusive” does not connote that such control must be individual and the defendant singular. (Hillas v. Westinghouse Electric Corp., 120 N. J. Super. 105, 293 A. 2d 419.) In fact, it is well settled in this state that the doctrine of res ipsa loquitur is applicable to multiple defendants. (Worden v. Union Gas System, supra; Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887.)
According to Prosser, Torts, 4th Ed., § 39, p. 211, in order to establish exclusive control it is not necessary for the plaintiff to eliminate all other possible causes of the accident. All that is required is that the plaintiff produce sufficient evidence from which a reasonable man could say that on the whole it was more likely than not there was negligence on the part of the defendant. If the evidence establishes that it was at least equally probable the negligence was that of another, the court should refuse to submit to the jury the negligence of the defendant on the theory of res ipsa loquitur. This rule was recognized in Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77, where it was said:
“. . . But such a showing is not sufficient where the evidence offered suggests with equal force that the injuries might have resulted without fault of the defendant. . . .” (p. 76.)
A leading case in this state illustrating the control requirement and containing an exhaustive analysis of res ipsa loquitur, is Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599. That case arose from an injury to the plaintiff when he was struck on the head by a falling street light globe. Suit was brought against the defendant light company which had manufactured, installed, and maintained the instrumentality oausing the injury. This court held the case as a whole was proper for the application of res ipsa loquitur. Proof of the casualty and of the surrounding circumstances was such ais to leave no reasonable conclusion to be drawn therefrom other than the accident occurred as a result of the negligence of the defendant.
In discussing the doctrine of res ipsa loquitur, the corut said:
“. . . The lamp and fixtures were such that ordinarily no injury would be expected from their use if carefully constructed and maintained. Although defendant was not an insurer of the safety of those who use die streets, the duty of carefully constructing and maintaining the lamp so that it would not be likely to cause injury to those who rightfully used the street, was upon the defendant, under its contract with, and the ordinances of, the city, and the injury happened without any voluntary action of plaintiff.” (p. 655.)
As noted, the defendant in the Mayes case designed, constructed, installed and maintained the street light. Consequently, the defendant had exclusive control of the street light from its inception. Whether the accident was caused by faulty design, negligent manufacturing, improper installation, or lack of due care in servicing, the defendant would necessarily have been solely responsible. The court could reasonably conclude that in ordinary circumstances the injury would not have occurred if the defendant had used due care.
In Daniel v. Otis Elevator Co., 154 Kan. 293, 118 P. 2d 596, this court was faced with a factual situation similar toi the instant case. The plaintiff was injured by a falling non-automatic elevator and subsequently brought an action against the elevator maintenance company based on the theory of res ipsa loquitur. On this occasion the doctrine was held not to apply, primarily for the reason defendant was not in. exclusive control of the elevator. Although the court relied on the probable negligence of the elevator operator as an intervening cause, it was emphasized the maintenance contract was insufficient to establish exclusive control. The surrounding circumstances were such that the court was unable h> conclude the accident occurred as a result of the negligence of the maintenance company. This was especially true, the court said, where the evidence failed to disclose anything wrong with the elevator before or after the accident, but did disclose the elevator was manned by an operator who might have been negligent.
The only other Kansas case which discusses the doctrine in connection with a falling elevator accident is Vieyra v. Engineering Investment Co., Inc., supra, in which a lessor was sued by an employee of the lessee for damages when a freight elevator broke and fell to the bottom of the shaft. Again, the doctrine was held not to apply since the lessor did not have exclusive control over the elevator.
While other jurisdictions have considered the applicability of res ipsa loquitur to an elevator maintenance company, no clear principle of law has developed. Numerous jurisdictions have refused to apply the doctrine due to the lack of control by the maintenance company. (Parise v. Otis Elevator Co., 100 Ohio App. 200, 136 N. E. 2d 113; Koch v. Otis Elevator Co., 10 A. D. 2d 464, 200 N. Y. S. 2d 700; Bryan v. Elevator Co., 2 N. C. App. 593, 163 S. E. 2d 534.) Even where the doctrine has been applied, the courts usually indicate that if there was proof of a real possibility other forces could have caused the elevator malfunction, then the doctrine would be inappropriate. Accordingly, the majority of jurisdictions agree res ipsa loquitur is inapplicable where the injured party fails to exclude other possible causes of the injury. (Hillas v. Westinghouse Electric Corp., supra.)
In Kekelis v. Machine Works, 273 N. C. 439, 160 S. E. 2d 320, the court stated:
“The rule of res ipsa loquitur never applies when the facts of the occurrence, although indicating negligence on the part of some person, do not point to the defendant as the only probable tortfeasor. In such a case, unless additional evidence, which eliminates negligence on the part of all others who have had control of the instrument causing the plaintiff’s injury, is introduced, the court must nonsuit the case. . . .” (p. 444.)
In the instant case the evidence discloses there were other equally possible causes of the accident in addition to the possibility of defendant’s negligence. The operation of the automatic elevator in this case involved highly complex electrical and mechanical equipment which was designed, manufactured and installed by a company other than defendant. The responsibility of a maintenance company does not extend to manufacturing defects, but is limited to liability for negligence in the performance of its duties. (Hillas v. Westinghouse Electric Corp., supra.) The defendant company had no control over any design defects, mistakes in installation, or any possible faulty construction of the elevator shaft. These are all possible causes of the accident which would not have been subject to the control of defendant. Plaintiff has introduced no evidence which would indicate it is probable the accident was caused by negligent servicing rather than by negligent manufacturing or installation. There was testimony to the effect that even proper maintenance or service could not prevent a momentary interruption of the power supply, or that power shorts and grounds in the electrical system could possibly deactivate a switch. In order to recover under the theory of res ipsa loquitur, plaintiff must present sufficient evidence from which it is reasonable to infer that more likely than not the cause of the fall was one for which defendant was responsible. Plaintiff failed to produce the facts essential to permit the use of the doctrine.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Defendants-appellants (Everett L. Cameron and Robert D. Bentley) appeal from convictions by a jury of four counts of aggravated robbery; two counts of aggravated burglary; one count of rape; and one oount of aggravated sodomy.
On March 16, 1973, at approximately 10:30 p. m. defendants forced their way into a room at the Airline Motel in Wichita. The room was occupied by a young married couple on their wedding night. Defendants forced entry when the young husband responded to a knock on the door. Cameron was armed with a shotgun and Bentley with a pistol. When defendants entered the room the wife retreated to the bathroom. Cameron ordered her out and both the husband and wife were ordered to lie on the floor. Defendants took eight dollars from the husband, his watch and wedding ring — and from the wife her engagement and wedding rings and one dollar. After robbing the couple of all their cash and jewelry each defendant raped the wife and committed anal copulation upon her. Bentley, upon threat of death, then forced the wife to commit oral copulation on him. Defendants then tied the young couple with strips of cloth torn from a bedsheet and as they left the young couple’s room Bentley struck the wife on the head with his pistol.
After defendants left the Airline they proceeded to the Townhouse Motel, arriving around 11:40 p. m. Gerald Dewberry was returning to his room at the Townhouse with food which he had brought from the motel restaurant for himself and his business partner, Gerald A. King, who was inside the room at the time and as Dewberry opened the door to his room, Bentley produced his pistol and forced his way into the room. A few minutes later Cameron, armed with his shotgun also entered the room. Dewberry and King were ordered to lie on the floor. Defendants then proceeded to take their money and jewelry, and while Dewberry and King were still on the floor, defendants sat down and ate the food which Dewberry had brought from the motel restaurant. Defendants kicked and severely beat both Dewberry and King and tied them with strips of cloth torn from bedsheets in the same manner as they had tied the newlyweds an hour earlier.
Three days later, on March 19, 1973, defendants were arrested. After a line-up identification, complaints were filed charging defendants on eight counts as previously stated.
Prior to their trial, which was set for August 21, 1973, defendants broke jail on August 17, but were apprehended soon thereafter. Following their apprehension after the jailbreak, defendants filed motions for continuance and change of venue, which were denied. The trial was commenced as previously scheduled. Defendants were jointly tried to a jury and each was convicted of all of the eight counts charged.
In the first of eight points specified on appeal, defendants contend the trial court erred in denying their request for continuance due to the fact that their escape from jail occurred only two days prior to the commencement of their trial. Defendants argue that their escape from jail generated such radio, television and newspaper publicity that being forced to go to trial, within two days thereafter, deprived them of life and liberty without due process of law.
In much the same manner, in point two, defendants assert that because of publicity surrounding their escape they were deprived of a fair and impartial trial when their motions for change of venue were denied. Defendants combine their arguments on points one and two and we shall consider the two points together.
Each defendant had previously filed a motion for a change of venue claiming that publicity in Wichita newspapers immediately following their arrests prevented a fair trial. Their motions were heard and denied by the administrative judge on June 8, 1973.
The basis for a change of venue in Kansas is governed by K. S. A. 22-2616 (1) which reads:
“(1) In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
We glean from the record that when the motions were heard by the trial court one or more of the newspaper articles were exhibited to the court, but none of the newspaper accounts or radio broadcasts are reproduced in the record on appeal. Apparently, no other evidence was submitted. It appears that, in substance, defendants argument is that the publicity generated by the nature of the offenses and the jailbreak constitutes prejudice per se. Defendants’ argument is squarely met by our decision in State v. Randol, 212 Kan. 461, 513 P. 2d 248, wherein we held:
“The mere publication of newspaper articles does not establish prejudice per se that defendant cannot obtain a fair and impartial trial in the county.” (Syl. fl.)
It has long been the law of this jurisdiction that a change of venue in a criminal case lies within the sound discretion of the trial court. (State v. Randol, supra.) The burden of proof is cast upon the defendant to show prejudice in the community. (State v. Anderson, 202 Kan. 52, 446 P. 2d 844.) Furthermore, prejudice must be established “not as a matter of speculation but as a demonstrable reality.” (State v. McLauglin, 207 Kan. 594, 485 P. 2d 1360; and Woods v. Munns, 347 F. 2d 948 [10th Cir. 1965]). Notwithstanding defendant’s failure to present affirmative evidence, we have carefully examined the record in this regard. The record discloses that fifty-seven jurors were examined on voir dire; twenty were excused for cause, but only nine were challenged and excused because of knowledge of publicity about the case. The other eleven jurors were excused for medical or other reasons unrelated to possible prejudice by reason of publicity. The voir dire examination of tire prospective jurors demonstrates that the community was far from saturated with prejudice. Defendants have totally failed to show so great a prejudice existing against them that they could not obtain a fair and impartial trial in Sedgwick County.
The granting of a continuance like change of venue also lies within the sound discretion of the trial court. (State v. McVeigh, 213 Kan. 432, 516 P. 2d 918.) Concerning the granting of continuances K. S. A. 22-3401 provides:
“All persons charged with crime shall be tried without unnecessary delay. Continuances may be granted to either party for good cause shown.”
Defendants make the same argument with respect to the overruling of their motions for a continuance as that advanced on change of venue; that is, the publicity generated by their escape shows good cause for continuance. What has been said concerning change of venue effectively answers the argument of defendants with respect to denial of a continuance. Absent a showing of actual prejudice, the trial court’s refusal to grant a continuance does not constitute an abuse of discretion. We further note that defendants did not renew either their motions for change of venue or continuance at the close of voir dire examination.
In their third point defendants contend the trial court erred in denying their motions to sever counts Nos. 1, 2, 3, 4 and 7 relating to offenses at the Airline Motel from counts Nos. 5, 6 and 8 concerning charges arising from defendant’s acts at the Townhouse Motel. Defendants assert that jumbling of the eight separate counts prevented a concentrated consideration of each count by each person on the jury panel. They further say that the offenses occurring at the Airline Motel are not related ti> nor was there a common element of substantial importance to connect them with the offenses occurring at the Townhouse Motel. Defendants’ position cannot be maintained. Joinder of counts in the same complaint or information is governed by K. S. A. 22-3202 (1) which reads:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
The statute is said to have codified prior case law of this state governing joinder of offenses in one information. (State v. Thomas, 206 Kan. 603, 481 P. 2d 964.) In State v. Thomas, supra, and more recently in State v. Ralls, 213 Kan. 249, 515 P. 2d 1205, this court has set forth the test to be applied in determining whether offenses were properly joined. In Ralls it was stated:
“. . . When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information or if separate informations have been filed they may be consolidated for trial at one and the same trial, (citing cases.) “(pp. 256, 257.)
To the same effect see State v. Wheeler, 215 Kan. 94, 523 P. 2d 722.
In the instant case the two sets of offenses occurred within approximately one hour, all were committed in motels — and in each case the victims were robbed and tied in a similar manner. Even though the offenses of rape and sodomy were committed only at the Airline Motel, all of the offenses were closely connected in time and were similar in other characteristics. We believe joinder here fully meets the standards of the statute. (See, also, State v. Anderson, supra; and State v. Jones, 202 Kan. 31, 446 P. 2d 851.)
Defendants next urge error because of the trial court’s denial of defendant Bentley’s motion for a separate trial. Although Cameron did not file a motion for a separate trial, both defendants argue on appeal that the trial court’s ruling prejudiced both of them. Their argument is that their trial strategy was restricted in that if one defendant took the stand and the other refused to do so, inferences therefrom would be drawn by the jury to the prejudice of both defendants. Defendants’argument overlooks the trial court’s obligation, on the request of a defendant, to instruct that the failure to testify may not be considered against him. If one defendant had testified and the other had not, the one exercising his Fifth Amendment right would have been entitled to the instruction. In the in stant case neither defendant elected to testify, and there is no indication that either desired to do so. The jury was properly instructed in this regard. In short, we see no way in which defendants’ trial strategy could have been restricted.
Under the provisions of K. S. A. 22-3204 the granting of separate trials, in such a case as this, is discretionary with the court. (State v. Sullivan & Smith, 210 Kan. 842, 504 P. 2d 190.)
Generally, an order for a separate trial of a defendant jointly charged with another must be based upon some ground sufficient to establish actual prejudice so as to require separate trials. In this connection the usual grounds are enumerated in 75 Am. Jur. 2d, Trial, § 20:
“The usual grounds for a severance are: (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and intraducibie against another would work prejudicially to the former with the jury; (4) that a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants. . . .” (p. 135.)
None of the aforementioned grounds are claimed to exist in this case. We note, however, that where the defenses of two or more jointly charged defendants, represented by a single attorney, are shown to be in conflict or antagonistic, this court has registered emphatic disapproval of a joint trial. (State v. Young, 196 Kan. 63, 410 P. 2d 256; and State v. Sullivan & Smith, supra.)
Defendants next contend they were deprived of due process of law by a comment made by a detective to the victims after they had identified defendants at the line-up. After identifications had been made in writing and the line-up proceedings terminated, Detective Joseph A. Thomas told the victims they had identified the two subjects who had been arrested. Defendants claim contravention of Kirby v. Illinois, 406 U. S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877. Defendants have failed to preserve the question; they did not move to suppress the line-up identification; neither did they object to the in-court identification. Under the provisions of K. S. A. 60-404 defendants are precluded from raising the question for the first time on appeal.
On the merits defendants’ position is untenable. Defendants claim contravention of Kirby v. Illinois, supra, which proscribes a line-up that is unnecessarily suggestive or conducive to irreparable mistaken identification. In the case at bar the detective’s observation was not made until after defendants had been identified and the line-up proceedings terminated. The record reveals the line-up was carefully organized and supervised.
Defendants claim they were prejudiced when the trial court, over objection, combined instructions concerning two counts in instructions Nos. 5, 8 and 9. In instruction No. 8 the court combined the charges of counts Nos. 5 and 6 relating to aggravated robbeiy of Dewberry and King, respectively. Instruction No. 8 reads:
“The defendants are charged in Count 5 and in Count 6 with the crime of aggravated robbery. The defendants have pleaded not guilty.
“To establish this charge, each of the following elements must be proved:
“1. That the defendants took the property from the person of Gerald R. Dewberry in Count 5 and that the defendants took the property from the person of Gerald A. King in Count 6.
“2. That such taking was by threat of bodily harm to Gerald R. Dewberry and Gerald A. King or by force.
“3. That at the time of such taking the defendants were armed with dangerous weapons, to wit: one double-barreled sawed-off shotgun and one unknown caliber revolver or pistol.
“4. That this act occurred on or about the 16th day of March, 1973, in Sedgwick County, Kansas.”
In much the same manner the court combined instructions relating to the aggravated robbery of each of the newlyweds charged in counts Nos. 1 and 2 of the information. Likewise, instructions relating to the burglary charges at both motels were combined in instruction No. 9. Defendants’ position appears to be that separate instructions as to each count and as to each defendant should have been given.
Defendants argue that the manner in which these instructions were structured misled the jury by indicating that if defendants were found guilty of one count, the jury would feel obligated to find them guilty on the other counts as well. Along the same line defendants further argue that by including both defendants in the instructions in question the jury would feel obligated to find both defendants guilty.
As quoted above in instruction No. 8 the court set out that defendants were charged in counts Nos. 5 and 6 with aggravated robbery. The same heading was used to explain the two counts in Nos. 5 and 9 to which the respective instructions related. Separate verdict forms with respect to each count and each defendant were submitted. Under such circumstances we discern no danger that the jury could have been misled into believing that a finding of guilty on one count dictated a like finding in the other, or that a finding of guilty as to one defendant compelled the same finding as to the other. Although we find no prejudicial error in the case at bar, we suggest that the better practice in such a case is to give PIK [Criminal] 52.07 (More than one defendant) and PIK [Criminal] 68.07 (Multiple Count) in addition to the specific instructions relating to each count.
Defendants base their next point on the denial of their requested instructions on robbery, burglary, and sodomy as lesser included offenses of the aggravated degrees of those offenses 'as charged in the information. Defendants say that the trial 'court has a duty to instruct on the lesser included offenses even though the evidence as to the lesser offense or offenses may not be strong. (Citing State v. Roberson, 210 Kan. 209, 499 P. 2d 1137.)
While K. S. A. 21-3107 (3) requires that instructions on lesser included offenses be given this duty 'arises only where there is evidence of circumstances under which the defendant might 'have reasonably been convicted of the lesser offense. (State v. Hollaway, 214 Kan. 636, 522 P. 2d 364; State v. Reed, 214 Kan. 562, 520 P. 2d 1314; and State v. Masqua, 210 Kan. 419, 502 P. 2d 728.)
In this case the evidence is overwhelming and undisputed that the persons who committed the robberies and sodomy were armed with a shotgun and a pistol, and that those offenses were committed at gunpoint. Likewise, as to aggravated burglary, the evidence is undisputed that there were persons present in each motel room when the robbers forced their entrance. The defendants’ alibi defense did not refute any of this evidence. Under all of the evidence adduced the defendants were either guilty of aggravated robbery, aggravated burglary, and aggravated sodomy, or they were not present and were guilty of nothing. Under the evidence here the jury would not have been warranted in finding defendants guilty of a lesser degree on any of the counts in question.
The defendants have abandoned their last claim of error directed at the trial court’s instruction on circumstantial evidence in view of our recent decision in State v. Wilkins, 215 Kan. 145, 523 P. 2d 728, wherein we held:
“An instruction on circumstantial evidence, which cautions the jury that a defendant should not be found guilty unless, the facts and circumstances proved exclude every reasonable theory of innocence or states that the jury cannot convict the defendant on circumstantial evidence unless the circumstances exclude every reasonable hypothesis of his innocence, is unnecessary when a proper instruction on ‘reasonable doubt’ is given; overruling State v. White, 211 Kan. 862, 508 P. 2d 842, and all other decisions in which this court has required a special instruction on circumstantial evidence.” (Syl. f 6.)
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Prager, J.:
This case involves the liability of a landlord for personal injuries suffered by the social guest of the tenant as the result of a slip and fall on the leased premises. The facts in this case are undisputed and are as follows: The defendant-appellee, Agnes Roseberry, is the owner of a single-family, one-story residence located at 827 Brown Avenue, Osawatomie, Kansas. Several months prior to January 9, 1971, the defendant leased the property on a month to month basis to a tenant, Rienecker. Just prior to the time the tenant took occupancy of the house the defendant landlord had work performed on the house. The remodeling of the house included a new roof. In repairing the house the repairmen removed the roof guttering from the front of the house but failed to reinstall it. The landlord knew the guttering had been removed by the workmen, intended to have it reinstalled, and knew that it had not been reinstalled. The roof line on the house was such that without the guttering the rain drained off the entire north side of the house onto the front porch steps. In freezing weather water from the roof would accumulate and freeze on the steps. The landlord as well as the tenant knew that the guttering had not been reinstalled and knew that without the guttering, water from the roof would drain onto' the front porch steps and in freezing weather would accumulate and freeze. The tenant had complained to the landlord about the absence of guttering and the resulting icy steps.
On January 9, 1971, there was ice and snow on the street and ice on the front steps. During the afternoon the tenant worked on the front steps, removing the ice accumulation with a hammer. The plaintiif-appellant, Gary D. Borders, arrived on the premises at approximately 4:00 p. m. in response to an invitation of the tenant for dinner. It is agreed that plaintiff’s status was that of a social guest of the tenant. There was ice on the street and snow on the front steps when plaintiff arrived. At 9:00 p. m. as plaintiff Borders was leaving the house he slipped and fell on an accumulation of ice on the steps and received personal injuries. There is no contention that the plaintiff Borders was negligent in a way which contributed to cause his injuries. After a pretrial conference the case was tried to the court without a jury. Following submission of the case the trial court entered judgment for the defendant, making findings of fact which are essentially those set forth above. The trial court based its judgment upon a conclusion of law which stated that a landlord of a single-family house is under no obligation or duty to a social guest, a licensee of his tenant to repair or remedy a known condition whereby water dripped onto the front steps of a house fronting north froze and caused plaintiff to slip and fall. The plaintiff has appealed to this court.
The sole point raised on this appeal by the plaintiff, Gary D. Borders, is that the trial court committed reversible error in concluding as a matter of law that a landlord of a single-family house is under no obligation or duty to a social guest of his tenant to repair or remedy a known condition whereby water dripped from the roof onto the front steps of a house fronting north, froze and caused the social guest to slip and fall.
At the outset it should be emphasized that we do not have involved here an action brought by a social guest to recover damages for personal injuries from his host, a possessor of real property. The issue raised involves the liability of a lessor who has leased his property to a tenant for a period of time. Furthermore, it should be pointed out that the plaintiff, a social guest of the tenant, has based his claim of liability against the landlord upon the existence of a defective condition which existed on the leased property at the time the tenant took possession.
Traditionally the law in this country has placed upon the lessee as the person in possession of the land the burden of maintaining the premises in a reasonably safe condition to protect persons who come upon the land. It is the tenant as possessor who, at least initially, has the burden of maintaining the premises in good repair. (Bailey v. Kelly, 93 Kan. 723, 145 Pac. 556, overruling a prior decision in the same case, Bailey v. Kelly, 86 Kan. 911, 122 Pac. 1027.) The relationship of landlord and tenant is not in itself sufficient to make the landlord liable for the tortious acts of the tenant. (Greiving v. La Plante, 156 Kan. 196, 131 P. 2d 898; Campbell v. Weathers, 153 Kan. 316, 111 P. 2d 72.) When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier, subject to all of the responsibilites of one in possession, both to those who enter onto the land and to those outside of its boundaries. Professor William L. Prosser in his Law of Torts, 4th Ed. § 63, points out that in the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee. There is therefore, as a general rule, no liability upon the landlord, either to the tenant or to others entering the land, for defective conditions existing at the time of the lease.
The general rule of non-liability has been modified, however, by a number of exceptions which have been created as a matter of social policy. Modem case law on the subject today usually limits the liability of a landlord for injuries arising from a defective condition existing at the time of the lease to six recognized exceptions. These exceptions are as follows:
1. Undisclosed dangerous conditions known to lessor and unknown to the lessee.
This exception is stated in Restatement, Second, Torts § 358 as follows:
Ҥ 358. Undisclosed Dangerous Conditions Known to Lessor
“(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if
“(a) tire lessee does not know or have reason to know of the condition or the risk involved, and
“(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.
“(2) If the lessee actively conceals the condition, the liability stated Subsection (1) continues until the lessee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”
In Kansas we have recognized and applied this exception to impose liability upon the landlord in the following cases: Moore v. Parker, 63 Kan. 52, 64 Pac. 975; Branstetter v. Robbins, 178 Kan. 8, 283 P. 2d 455; Stertz v. Briscoe, 184 Kan. 163, 334 P. 2d 357; Tillotson v. Abbott, 205 Kan. 706, 472 P. 2d 240; Bodnar v. Jackson, 205 Kan. 469, 470 P. 2d 726. It should be pointed out that this exception applies only to latent conditions and not to conditions which are patent or reasonably discernible to the tenant. (Branstetter v. Robbins, supra.)
2. Conditions dangerous to persons outside of the premises.
This exception is stated in Restatement, Second, Torts § 379 as follows:
Ҥ 379. Dangerous Conditions Existing When Lessor Transfers Possession.
“A lessor of land who transfers its possession in a condition which he realizes or should realize will involve unreasonable risk of physical harm to others outside of the land, is subject to the same liability for physical harm subsequently caused to them by the condition as though he had remained in possession.”
The theory of liability under such circumstances is that where a-nuisance dangerous to persons outside the leased premises (such as the traveling public or persons on adjoining property) exists on the premises at the time of the lease, the lessor should not be permitted to escape liability by leasing the premises to another. The liability of the landlord for structural defects on leased property which causes injuries to persons outside of the premises was recognized and made the basis of a judgment against the landlord in Mitchell v. Foran, 143 Kan. 191, 53 P. 2d 490. Mitchell involved an awning hook which was fastened to the leased building and projected onto the public sidewalk and caused injury to a nine-year-old pedestrian.
3. Premises leased for admission of the public.
The third exception arises where land is leased for a purpose involving the admission of the public. The cases usually agree that in that situation the lessor is under an affirmative duty to exercise reasonable care to inspect and repair the premises before possession is transferred, to prevent any unreasonable risk or harm to the public who may enter. This exception is stated in § 359 of Restatement, Second, Torts as follows:
Ҥ 359. Land Leased for Purpose Involving Admission of Public
“A lessor who leases land for a purpose which involves the admission of the public is subject to liability for physical harm caused to persons who enter the land for that purpose by a condition of the land existing when the lessee takes possession, if the lessor
“(a) knows or by the exercise of reasonable care could discover that the condition involves an unreasonable risk of harm to such persons, and
“(b) has reason to expect that the lessee will admit them before the land is put in safe condition for their reception, and
“(c) fails to exercise reasonable care to discover or to remedy the condition, or otherwise to protect such persons against it.”
This exception has been recognized in Kansas in the following cases: Copley v. Balle., 9 Kan. App. 465, 60 Pac. 656 (hotel-restaurant); Turner v. Kent., 134 Kan. 574, 7 P. 2d 513 (grocery store); Zinn v. Hill Lumber & Investment Co., 176 Kan. 669, 272 P. 2d 1106 (room leased for rummage sale for one day). In Mathes v. Robinson, 205 Kan. 402, 469 P. 2d 259, we held that the owner of a rooming house was liable to a guest of his tenant who was asphyxiated as the result of an unvented gas heater of which the defendant had knowledge. Liability in the case was predicated upon wanton misconduct on the part of the landlord of the building. No attempt was made by the court to base liability upon one of the recognized exceptions. Liability for simple negligence was not claimed in the case and the plaintiff relied solely upon wantonness. Under similar factual circumstances in other jurisdictions liability of the landlord has been predicated on the theory that a rooming house, along with a hotel and motel, falls within the exception of property leased for public use and therefore the owner as lessor should be held liable for a dangerous condition existing at the time of the lease and of which the lessor had knowledge. (See the cases cited in the annotation in 17 A. L. R. 3rd 873.)
4. Parts of land retained in lessor’s control which lessee is entitled to use.
When different parts of a building, such as an office building or an apartment house, are leased to several tenants, the approaches and common passageways normally do not pass to the tenant, but remain in the possession and control of the landlord. Hence the lessor is under an affirmative obligation to exercise reasonable care to inspect and repair those parts of the premises for the protection of the lessee, members of his family, his employees, invitees, guests, and others on the land in the right of the tenant. This exception is covered in Restatement, Second, Torts §§ 360 and 361 which provide as follows:
“§ 360. Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use
“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”
“§ 361. Parts of Land Retained in Lessor’s Control but Necessary to Safe Use of Part Leased
“A possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care
“(a) could have discovered the condition and the risk involved, and
“(b) could have made the condition safe.”
In Kansas this exception has been recognized in the following cases: Hinthorn v. Benfer., 90 Kan. 731, 136 Pac. 247; Given v. Tobias., 137 Kan. 58, 19 P. 2d 472; Bogart v. Lyman, 142 Kan. 758, 51 P. 2d 918; Brunsilius v. Farmers & Merchants State Bank, 143 Kan. 148, 53 P. 2d 476; Trimble v. Spears, 182 Kan. 406, 320 P. 2d 1029; Farran v. Peterson, Administrator, 185 Kan. 154, 342 P. 2d 180.
5. Where lessor contracts to repair.
At one time the law in most jurisdictions and in Kansas was that if a landlord breached his contract to keep the premises in good repair, the only remedy of the tenant was an action in contract in which damages were limited to the cost of repair or loss of rental value of the property. Neither the tenant nor members of his family nor his guests were permitted to recover for personal injuries suffered as a result of the breach of the agreement. (Murrell v. Crawford., 102 Kan. 118, 169 Pac. 561.) In most jurisdictions this rule has been modified and a cause of action given in tort to the injured person to enable him recovery for his personal injuries. Murrell was expressly overruled in Williams v. Davis, 188 Kan. 385, 362 P. 2d 641. This exception is found in Restatement, Second, Torts § 357 which states as follows:
Ҥ 357. Where Lessor Contracts to Repair
“A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
“(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
“(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
“(c) the lessor fails to exercise reasonable care to perform his contract.”
In Kansas this exception has been followed in the following cases: Waterbury v. Riss & Company, 169 Kan. 271, 219 P. 2d 673; Williams v. Davis, supra; Transport Insurance Co. v. Huston, 207 Kan. 759, 486 P. 2d 1344; Richardson v. Weckworth, 212 Kan. 84, 509 P. 2d 1113. In Vieyra v. Engineering Investment Co., Inc., 205 Kan. 775, 473 P. 2d 44, we held that although the landlord has a duty to keep the premises in repair by virtue of a covenant to repair in the lease, if the lease does not require the lessor to inspect the premises, the lessor is not liable until the lessee has given him notice of the need for repairs and the lessor thereafter fails to exercise reasonable care and diligence in making the repairs. In Steele v. Latimer, 214 Kan. 329, 521 P. 2d 304, we held that the provisions of a municipal housing code prescribing minimum housing standards are deemed by implication to become a part of a lease of urban residential property, giving rise to an implied warranty on the part of the lessor that the premises are habitable and safe for human occupancy in compliance with the pertinent code provisions and will remain so for the duration of the tenancy. Such an implied warranty creates a contractual obligation on the lessor to repair the premises to keep them in compliance with the municipal housing standards as set forth in a municipal housing code.
6. Negligence by lessor in making repairs.
When the lessor does in fact attempt to make repairs, whether he is bound by a covenant to do so or not, and fails to exercise reasonable care, he is held liable for injuries to the tenant or others on the premises in his right, if the tenant neither knows nor should know that the repairs have been negligently made. This exception is stated in Restatement, Second, Torts § 362:
Ҥ 362. Negligent Repairs by Lessor
“A lessor of land who, by purporting to make repairs on the land while it is in the possession of his lessee, or by the negligent manner in which he makes such repairs has, as the lessee neither knows nor should know, made the land more dangerous for use or given it a deceptive appearance of safety, is subject to liability for physical harm caused by the condition to the lessee or to others upon the land with the consent of the lessee or sublessee.”
§ d of Section 362 declares that the lessor is subject to liability if, but only if, the lessee neither knows nor should know that the purported repairs have not been made or have been negligently made and so, relying upon the deceptive appearance of safety, subjects himself to the dangers or invites or permits his licensees to encounter them. Conversely it would follow that if the lessee knows or should know that the purported repairs have not been made or have been negligently made, then the lessor is not liable under this exception. This exception has been recognized in Kansas in the following cases: Mann v. Fuller, 63 Kan. 664, 66 Pac. 627; Upham v. Head, 74 Kan. 17, 85 Pac. 1017; Meecke v. Morguies., 128 Kan. 423, 278 Pac. 45.
With the general rule and its exceptions in mind we shall now examine the undisputed facts in this case to determine whether or not the landlord can be held liable to the plaintiff here. It is clear that the exceptions pertaining to undisclosed dangerous conditions known to the lessor (exception 1), conditions dangerous to persons outside of the premises (exception 2), premises leased for admission of the public (exception 3), and parts of land retained in the lessors control (exception 4) have no application in this case. Nor do we believe that exception 5, which comes into play when the lessor has contracted to repair, has been established by the court’s findings of fact. It does not appear that the plaintiff takes the position that the lessor contracted to keep the premises in repair; nor has any consideration for such an agreement been shown. As to exception 6, although it is obvious that the repairs to the roof were not completed by installation of the guttering and although the landlord expressed his intention to replace the guttering, we do not believe that the factual circumstances bring the plaintiff within the application of exception 6 where the lessor has been negligent in making repairs. As pointed out above, that exception comes into play only when the lessee lacks knowledge that the purported repairs have not been made or have been negligently made. Here it is undisputed that the tenant had full knowledge of the icy condition on the steps created by the absence of guttering. It seems to us that the landlord could reasonably assume that the tenant would inform his guest about the icy condition on the front steps. We have concluded that the factual circumstances do not establish liability on the landlord on the basis of negligent repairs made by him.
In his brief counsel for the plaintiff vigorously argues that the law should be changed to make the landlord liable for injuries resulting from a defective condition on the leased premises where the landlord has knowledge of that condition. He has not cited any authority in support of his position, nor does he state with particularity how the existing law pertaining to a landlord’s liability should be modified. We do not believe that the facts and circumstances of this case justify a departure from the established rules of law discussed above.
The judgment of the district corut is affirmed.
Fatzer, C. J., concurring in result.
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The opinion of the court was delivered by
Harman, C.:
This litigation initially involved disputes between owners of farm land and their tenant arising during the crop years of 1971 and 1972.
The plaintiff landowners, Edwin R. and Gladys L. Stock, fired the first barrage in this forensic battle by filing their petition against the defendant tenant, Albert H. Nordhus, on February 9, 1973. In the first count of their petition plaintiffs sought an accounting for grain harvested during 1971 under a farm lease agreement for that year. In a second count plaintiffs asked for reasonable rent for the premises during 1971 in the sum of $8,000 and $6,500 damages for mental and physical anguish caused by defendant’s failure to deliver their share of the crop pursuant to the lease.
On March 15, 1973, defendant responded with the filing of an instrument denominated answer and counterclaim. The answer contained a general denial and an allegation that defendant had complied with the lease agreement and had fully accounted for grain harvested during the 1971 crop year. Defendant’s counterclaim sought $1,500 allegedly due him by reason of plaintiff’s fail ure to pay him. their proportionate share (40%) of the fertilizer, chemical and spray expense for the crop year of 1972; he also sought $5,000 actual and $50,000 punitive damages by reason of mental anguish and embarrassment resulting from the false statements made against him in plaintiffs’ petition.
On March 20, 1973, plaintiffs filed their answer to defendant’s counterclaim, which was simply a general denial of defendant’s claim.
On August 30, 1973, plaintiffs’ then attorney, Larry McGrath, filed a motion to withdraw as counsel, which, after hearing, was granted. Subsequently Fred W. Phelps entered the case as plaintiffs’ counsel. On December 24, 1973, plaintiffs moved for summary judgment on defendant’s counterclaim. This motion was temporarily denied May 3, 1974. At the same time plaintiffs asked and received permission to file an amended answer to defendant’s counterclaim. On May 6, 1974, plaintiffs filed their amended answer. Included in it was a counterclaim to defendant’s counterclaim, the new counterclaim being based upon plaintiffs’ allegation defendant was a trespasser on their land during the 1972 crop year, for which plaintiffs sought $10,000 actual and $25,000 punitive damages.
Defendant promptly countered May 9, 1974, by filing his motion to strike plaintiffs’ counterclaim. The trial court concluded plaintiffs’ counterclaim was available and could have been included either in their petition or their answer to defendant’s counterclaim filed more than a year previously and it sustained this motion and dismissed that part of the proceeding. Plaintiffs have appealed from that order dismissing their counterclaim to defendant’s claim arising out of his occupancy of the land in 1972.
On November 7, 1974, Mr. Phelps was permitted by the trial court to withdraw as counsel for plaintiff-appellants and on January 16, 1975, upon application duly made, this court granted similar withdrawal. Later appellants personally notified this court they desired to have their case submitted on the record and brief already filed. At oral argument of the appeal counsel for appellee advised this court that all claims between the parties had been disposed of except appellee’s claim for the crop expense for the year 1972 and appellants’ counterclaim.
Prior to consideration of the appeal on its merits a threshold question presents itself — the appealability of an order dismissing a counterclaim — one we have had no occasion to consider directly under our present procedural code.
K. S. A. 60-2102 (a) (4) provides that the appellate jurisdiction of this court may be invoked as a matter of right by appeal from a “final decision in any action. . . ”, and further that in any appeal from a final decision any act or ruling from the beginning of the proceedings shall be reviewable. In Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637, we discussed the policy enunciated in the foregoing provision, saying:
“The policy of the new code leaves no place for intermediate and piecemeal appeals which tend to extend and prolong litigation. Its purpose is to secure the just, speedy and inexpensive determination of every action.” (p. 374.)
Further, this was stated:
“The word [final] is to be given its ordinary meaning. A judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues. The last sentence of the paragraph quoted above [60-2102 (a) (4)] protects the right to have a review of interlocutory or intermediate orders on appeal from the final determination of the case.” (p. 374.)
The question is whether the order appealed from is a “final decision” in the sense it disposes of all issues in the case. We think it is not.
First of all, the parties agree, and correctly so, that the matter asserted by appellants in their answer and counterclaim constitutes a compulsory counterclaim. It arises out of the same transaction as does the claim of appellee. Appellee sought damages growing out of his occupancy of appellants’ land in 1972 — appellants’ claimed damages arose from the same occupancy. The significance here of a counterclaim being compulsory, rather than merely permissive, is that it has been held the failure to plead it in response to. a claim bars a party from later bringing an independent action on the claim (6 Wright & Miller, Federal Practice and Procedure: Civil §1417). This well-established principle derives primarily from federal rule 13 (a) which is identical to our provision for the pleading of compulsory counterclaims, K. S. A. 60-213 (a). In 6 Wright & Miller, supra, § 1408, under the heading “Appealability of Rule 13 Claims”, this discussion appears:
“In general, the dismissal of either a compulsory or permissive counterclaim or a cross-claim, or the refusal to dismiss one of these claims is interlocutory and cannot be appealed in advance of the final judgment in the main action. . . .
“Under Rule 54 (b), the court can enter a final judgment on a counterclaim or cross-claim if it determines that ‘there is no just reason for delay and upon an express direction for the entry of judgment’ and that order will be appealable. Similarly, once the main claim has been adjudicated and a final order has been entered an appeal may be taken on the Rule 13 claim.
“A few federal courts have held that when the district court enters a judgment under Rule 54 (b) on a compulsory counterclaim the appellate court must look behind that judgment to determine if there actually has been a final adjudication of the claim between the parties; if not, the appeal must be dismissed. This strict adherence to the ‘final judgment rule’ is supported by the general practice of treating the original claim and any compulsory counterclaims asserted under Rule 13 (a) as one unit. Moreover, at least one court has pointed out that because a compulsory counterclaim arises out of the same transaction or occurrence as the main claim by definition there is a close relationship between the two, so that if the final judgment in the main action is subsequently appealed, the court may be required to review the disposition of the compulsory counterclaim as well. In light of this possibility, it may be in the interests of judicial economy to await the final adjudication of the entire action before allowing a compulsory counterclaim to be appealed. . . .” (pp. 33-35.)
The rationale of the many federal cases in support of the rule that dismissal of a compulsory counterclaim is an interlocutory matter and not an appealable order as of right is that since such a counterclaim arises from the same occurrence or transaction as the main action the appeal should await determination of the main action and thereby avoid piecemeal and fragmentary disposal of a matter (see Audi Vision Inc. v. RCA Mfg. Co., 136 F. 2d 621; Toomey v. Toomey, 149 F. 2d 19; Nachtman v. Crucible Steel Co. of America, 165 F. 2d 997, and cases cited therein). Traditionally, we have followed interpretation of federal procedural rules after which our own have been patterned. We see no reason to depart here from that view where our own policy is to avoid piecemeal appeals (Connell v. State Highway Commission, supra). Accordingly, our general holding is that an order dismissing a compulsory counterclaim is interlocutory and not a final decision which can be appealed as of right in advance of the final judgment in the main action.
As indicated, appellee’s claim is premised on some sort of consensual occupancy or use of the farm land in question while appellants’ counterclaim was premised on trespass on the land by appellee. Dismissal of the latter did not finally settle the issue; hence the appeal here should be dismissed.
In ordering dismissal we are not unaware of the possibility that, dependent upon the final judgment rendered in the trial court, we may have occasion later to deal with the counterclaim, even to the extent of reviewing it on the merits. Being interlocutory in nature the trial court has authority to reconsider and change the order dismissing appellants’ counterclaim as the ends of justice may indicate in the final determination of the action between the parties. Despite the possibility of another appeal with consequent hardship in this particular case we believe the rationale expressed for not entertaining an appeal from a dismissal of a compulsory counterclaim is sound. In Audi Vision Inc. v. RCA Mfg. Co., supra, Circuit Judge Charles E. Clark, an eminent procedural scholar, elaborated the point thus:
“Interlocutory appeals in cases other than those provided by statute at times seem appealing as affording opportunity for the quick correction of errors which may have occurred in the course of the proceedings below. And since any general rule is always subject to exceptions, undoubtedly there will be times when in the actual posture of a case a short-cut ruling may be helpful. But there seems no question that in the long run fragmentary disposal of what is essentially one matter is unfortunate not merely for the waste of time and expense caused the parties and the courts, but because of the mischance of differing dispositions of what is essentially a single controlling issue. Moreover, as experience under certain practices permitting such appeals shows, there is an unfortunate tendency under such a system to stress decisions on pure points of procedure in the hope that these may shorten or evade a trial, but with the unfortunate consequence of shifting emphasis from merits to form. In fact, the inducement to interlocutory appeals often appears to come from an attempt of a trial court to press the abbreviation of a lawsuit beyond what is really feasible. If such abbreviation is denied, it seems clear that appeal does not lie [citations] and the same result must follow its grant where this does not settle all matters arising out of a single transaction or occurrence.” (pp. 624-625.)
The appeal is dismissed.
approved by the court.
Fromme, J., not participating.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a judgment of 'the district court of Sedgwick County, Kansas, finding that inter vivos reciprocal trusts created by H. W. Cardwell and Katherine Cardwell were contractual in nature, and enforcing the provisions of the trust created by H. W. Cardwell for the benefit of the plaintiffs (appellees herein) against his estate, which is -being administered by the defendant trustees (appellants herein) in accordance with the provisions of the H. W. Cardwell Revocable Trust as amended. The trial court found H. W. Cardwell had breached an agreement with his wife by failing to leave certain property for the plaintiffs (who are two of his grandchildren) in trust upon his death. The trial court ordered reinstatement of the written trust provisions creating such benefits, which had been revoked by H. W. Cardwell prior to his death.
The underlying question is whether the provisions made for the benefits of the plaintiffs in the H. W. Cardwell Revocable Trust as amended January 17, 1962, later cancelled by an amendment to that trust dated May 31, 1965, after the death of Katherine Cardwell, were made pursuant to an agreement or contract, which can be enforced as a claim against the estate of H. W. Cardwell, deceased.
The evidence presented to the trial court consisted of the trust documents and various amendments thereto, the charter of Charitable Foundation, Inc., the pleadings, interrogatories and answers filed by both parties. A summary of the pertinent provisions contained in the seven trust documents involved in this litigation is essential.
In August of 1960 H. W. Cardwell, and his wife, Katherine S. Cardwell, resided in Wichita, Kansas. They had two children, H. W., Jr., and Jean Anne, who were married adults and each had two children, so that Mr. and Mrs. Cardwell had an immediate family of two children and four grandchildren. The Cardwells were wealthy people possessing a combined estate in excess of $4,000,000 at that time.
On August 12, 1960, Mr. and Mrs. Cardwell executed separate instruments denominated the “Katherine S. Cardwell Revocable Trust” and the “H. W. Cardwell Revocable Trust.” Their entire combined estate was settled in these two trusts. The preamble in Mr. Cardwell’s trust recites that he is “joined herein by my wife, Katherine S. Cardwell” and that he is delivering all of his property, both real and personal, to himself and to Mable H. McKee (one of the appellants herein) as co-trustees. In the same manner, the preamble in Mrs. Cardwell’s trust recites that she is “joined herein by my husband, H. W. Cardwell” and that she is delivering all of her property, both real and personal, to H. W. Cardwell as trustee.
Each settlor was joined in the execution of his or her trust by the other spouse who expressly consented to the terms and provisions of the instrument and waived all rights as the settlor’s spouse in and to the trust property under law.
Each trust directs the trustees to distribute all income from the trust property to the settlor during his or her lifetime “at such intervals and in such amounts as the settlor may from time to time direct.” The same provision also authorizes the settlor “to withdraw from time to time, and at any time, any part of the Trust Estate.” Each settlor reserved the right to alter, amend or revoke in whole or in part, his or her trust by delivering a written instrument to the trustees then serving.
Article II of each trust makes provision for the disposition of specific personal property upon the death of the settlor. Certain personal property (jewelry and clothing) is to be distributed out right upon the settlor’s death and other specified personal property (automobiles, household property and stock) is to be held or used by the surviving spouse for life with the remainder over to other named beneficiaries.
In the last paragraph in Article II, paragraph 2.7, of each instrument the settlor explains the omission of certain heirs. Mr. Card-well’s trust recites:
“Settlor makes no provisions for distributions for the primary benefit of Settlor’s children for the reason that he has previously made provisions for them by gifts of stock and otherwise, and also for the reason that Settlor’s wife has made ample provision for such children.” (Emphasis added.)
Mrs. Cardwell’s trust recites:
“Settlor make no provision for the distributions for the primary benefit of Settlor’s grandchildren for the reason that Settlor’s husband has made ample provision for such grandchildren.” (Emphasis added.)
The property disposed of by specific legacy under Article II of each trust was relatively insignificant. The great bulk of each estate consisted of shares of stock in the Cardwell Investment Company. Article III of each trust provides for the disposition of this stock and all remaining property held by the respective settlors at death.
Article III of Mrs. Cardwell’s trust places her entire residuary estate in trust for the benefit of their son and daughter, each of whom is given a power of appointment over the estate remaining at his or her death. If the son and daughter predecease the settlor then the residuary estate is given to their issue.
Article III of Mr. Cardwell’s trust consists of a single paragraph which divides the estate remaining after the dispositions made in Article II into two parts of equal value, one of which is to be “held in trust, managed, invested and distributed for the benefit of the issue of Settlor’s son” and the other of which is to be likewise held and managed in trust “for the benefit of the issue of Settlor’s daughter.”
Article V of the H. W. Cardwell Revocable Trust directs that, after the settlor’s death, cash payments be made to his wife (for “medical and hospital expenses and maintenance” during her lifetime), his sister ($3,000 per year for life) and five other individuals (a maximum of $140,000 is to be paid over a period of ten years). These payments are to be made in equal shares from the income of the trusts created for the benefit of his grandchildren. No similar provision appears in Mrs. Cardwell’s trust.
The remaining provisions in both trusts deal with the powers, duties, obligation, authority, accounting and succession of the trustees. These provisions are substantially identical. Each trust provides for alternative dispositions in the event any of the beneficiaries (including each spouse, the children and the grandchildren) do not survive the settlor and for final disposition of the trust property upon the death of the beneficiaries who do survive the settlor.
On the same day that the Cardwells’ Revocable Trusts were executed (August 12, 1960), a third instrument denominated “H. W. Cardwell Irrevocable Trusts” was executed by both parties. The preamble recites that H. W. Cardwell is “joined herein by my wife, Katherine S. Cardwell” in the delivery and transfer of $500,000 to the trustees to be held in separate and equal trusts for the benefit of their four grandchildren, of whom the plaintiffs in this suit are two. Mrs. Cardwell executed the trust reciting that she “does hereby consent to each and all of the terms and provisions of the foregoing instrument, waiving any and all rights that she had or might have as the wife of Settlor in or to said property under law.”
The H. W. Cardwell Irrevocable Trusts are not in dispute in this litigation. The instrument creating them does, however, in the preamble, express concern that the grandchildren “will be afforded little opportunity to develop a sense of responsibility and independence in financial matters” due to the financial assistance previously provided to them by Mr. Cardwell “during their tender years” and that, if such financial assistance continues, they “will have little opportunity to gain experience in the handling of money and property.” The preamble then states that it is “imperative that [the grandchildren] be capable of handling their own funds and properties before they inherit or otherwise acquire substantial properties which they must manage.” Article II of the irrevocable trust instrument directs that distributions of income from the irrevocable trusts to the grandchildren are to be made by the trustees for the purpose of providing them with a “fund for investment and management” which can be suspended if they “should demonstrate a lack of responsibility and good judgment in the handling of the funds so distributed.”
Following the execution of her revocable trust, Mrs. Cardwell amended her declaration of trust on December 23, 1960, pursuant to the right reserved to alter, amend, or revoke the trust. Mr. Card-well acknowledged the amendment and consented to it in writing. The substance of the amendment is not pertinent to the case at bar, but the amendment recited in Article IV: “The right to alter, amend, or revoke, in whole or in part, the foregoing Amendment is hereby reserved to Settlor.”
Thereafter on January 17, 1962, Mr. Cardwell executed an amendment to his 1960 revocable trust. The amendment stating:
“Pursuant to the right reserved to me as Settlor of the H. W. Cardwell Revocable Trust to alter, amend or revoke said trust, I . . . joined herein by wife, KATHERINE S. CARDWELL, do hereby amend said transfer and declaration of trust. . . .”
For the most part, the amendments made technical changes and minor adjustments which are not at issue here. In the closing paragraph Mrs. Cardwell declares she “does hereby consent to' each and all of the terms and provisions of the foregoing instrument, waiving any and all rights that she has or might have as the wife of Settlor in or to said property under law.” The same recitation is made in paragraph 2.7, as in the previous trust, that:
“Settlor makes no provision for distributions for the primary benefit of Settlor’s children for the reason that he has previously made provision for them by gifts of stock and otherwise, and also for the reason that Settlor’s wife has made ample provision for such children.”
Article III of Mr. Cardwell’s 1962 amendment replaced the single paragraph contained in Article III of the 1960 trust with eight new paragraphs. Under the 1962 amendment shares of Cardwell Investment Company stock having a total value of $500,000, but not in excess of 3,125 shares, were to be placed in trust for Mr. Card-well’s grandchildren. The amendment further required the trustees to distribute to Charitable Foundation, Inc., (a non-profit, tax exempt corporation organized under Kansas law by Mr. Cardwell) $571,000 worth of Class A common stock of Cardwell Investment Company (reduced by the total amount of shares previously transferred and prior contributions). It is then directed that the remaining shares of Cardwell Investment Company be placed in a new trust which was to be administered for the benefit of Mrs. Cardwell and certain other named income beneficiaries who survive the settlor. Upon the death or payment in full of these beneficiaries, any remaining assets are to be “held for the benefit of all those persons, other than Settlor, who have at any time served as Trustee.” All trusts created under Article III, as amended, are to terminate 21 years after the death of the survivor of the issue of Mr. and Mrs. Cardwell or upon the liquidation of Cardwell Investment Company.
The trial court found that based on the evidence contained in the answers to interrogatories the 1962 amendment amounted to a substantital reduction in the property Mr. Cardwell was providing for the grandchildren.
The 1962 amendment of Mr. Cardwell in Article XIII recites:
“Settlor reserves the right to alter, amend or revoke, in whole or in part, this trust instrument and all trusts created pursuant hereto. Such power to alter, amend or revoke may be exercised by written instrument signed by Settlor and delivered to Trustees then serving, provided, however, that no such alteration or amendment shall increase the duties and responsibilities of the Trustee unless Trustee consents to such alteration or amendment in writing or by endorsement thereon. Amendments may be cancelled or amended in like manner.”
Further amendments which were made to Mr. Cardwell’s revocable trust on May 21, 1964, did not affect the trusts created for the benefit of the grandchildren. As in the case of the 1960 revocable trust of Mr. Cardwell and the 1962 amendment thereto, the 1964 amendment recites that the settlor is “joined herein by my wife” and the instrument itself is executed by both Mr. and Mrs. Cardwell. The 1964 amendment recites that it was:
“Pursuant to the right reserved to me as Settlor of the H. W. Cardwell Revocable Trust to alter, amend, or revoke. . . .”
The 1964 amendment again said:
“The right to alter, amend or revoke in whole or in part the foregoing amendment is hereby reserved to Settlor.”
Mrs. Cardwell died on July 15, 1964. Her estate was distributed according to the provisions of her revocable trust of August 12, 1960, and its amendment of December 23, 1962. After the payment of estate and inheritance taxes, her trust estate had a. value of $987,000. The income from this estate is currently being distributed to her two children.
Mr. Cardwell amended his trust for the last time on May 21, 1965. Article II of the 1965 amendment directs the trustees to distribute any automobile or automobiles to the settlor’s son (H. W. Cardwell, Jr.); distribute tangible personal property of personal use and adornment, household property and stock to the settlor’s daughter (Jean Anne Cardwell Nicoli). The trustees are also to forgive the unpaid balance of a promissory note executed by the settlor’s daughter. The final paragraph in Article II states:
“Settlor makes no further provisions for distributions for the primary benefit of Settlor’s daughter for tire reason that he has previously made provision for her by gifts of stock and otherwise, and also for the reason that Settlor’s wife has made ample provision for such daughter.”
The remaining portion of the trust estate is distributed under Article III as follows: A trust was established for the settlor’s son for the purpose of equalizing the number of shares of Cardwell Investment Company, Inc., stock the son would receive with the number the daughter received pursuant to the provisions of Katherine Cardwell’s trust; a total of $250,000 worth of stock was placed in separate trusts for the benefit of three named individuals; from the remaining assets periodic cash payments in excess of $300,000 are to be made to eight individuals; and all funds remaining in the trust estate and all reversionary interests in any funds not completely disposed of by the foregoing provisions are given to Charitable Foundation, Inc.
The 1965 amendment to the H. W.. Cardwell Revocable Trust left the grandchildren of H. W. Cardwell without any share whatever in the 'primary benefits provided by the estates of Mr. and Mrs. Cardwell. Since Mrs. Cardwell died ten months earlier, she was no longer able to amend her trust to provide for her grandchildren.
In the 1965 amendment to his trust Mr. Cardwell recited:
‘^Pursuant to the right reserved to me as Settlor of the H. W. Cardwell Revocable Trust to alter, amend or revoke said trust, I, H. W. Cardwell of Sedgwick County, Kansas, hereinafter called ‘Settlor,’ do hereby amend said transfer and declaration of trust, and the H. W. Cardwell Revocable Trust created thereby, by substituting the provisions which are set out below for all of the provisions contained in said transfer and declaration of trust executed the 12th day of August, 1960, and contained in the amendments heretofore made to such transfer and declaration of trust and to the trusts created thereby. ...”
Using the same language contained in his original revocable trust instrument he reserved the right to alter, amend and revoke.
H. W. Cardwell died on January 18, 1972, without making any further amendments to the trust. As of the date of the execution of the 1965 amendment to his trust the estate of H. W. Cardwell had an approximate value of $2,229,000. After his death and the payment of debts, funeral expenses, state and federal taxes the net' value of the H. W. Cardwell Revocable Trust was $2,160,000.
Thereafter the trustees proposed to distribute the trust according to the provisions of the 1965 amendment, which would not include any benefits for the grandchildren. The trustees proposed distribution would include $1,325,633 to Charitable Foundation, Inc.
Charitable Foundation, Inc., is a non-profit, tax exempt corporation which was organized under Kansas law by H. W. Cardwell prior to his death in 1961.
The corpus of the H. W. Cardwell Trust had a value of approximately $2,342,000 when the January 17, 1962, amendment was executed by Mr. and Mrs. Cardwell, limiting the interest of their grandchildren therein to $500,000 worth of Cardwell Investment Company stock. As the children of the daughter of Mr. and Mrs. Cardwell, the plaintiffs sought and obtained enforcement in the trial court of the trust created for their benefit in 1962 consisting of $250,000 worth of Cardwell Investment Company stock ($125,-000 each). The other two grandchildren have not brought suit and are not parties to the case.
The appellees filed this action alleging that:
“. . . [T]he provision for the benefit of these plaintiffs were made pursuant to contract, were joint, mutual and reciprocal and the amendment or revocation thereof by the unilateral act of H. W. Cardwell after the death of Katherine S. Cardwell was invalid and of no force and effect. By reason thereof, these plaintiffs are entitled to the benefit provided them by the provisions of Article III, Paragraph 3.2 of the H. W. Cardwell Revocable Trust Amendment of 1962 and which right constitutes a claim against the estate of H. W. Cardwell, deceased, which defendants are obligated to recognize and pay as provided by Article II, Paragraph 2.2 of the H. W. Cardwell Revocable Trust Amendment of 1965. . . .”
Charitable Foundation, Inc., was named as a defendant below in addition to the trustees because under the 1965 amendment claims asserted against the estate of H. W. Cardwell are to be paid first from the funds and properties which would otherwise be distributed to Charitable Foundation, Inc.
The appellants’ answer denied the Cardwells had any agreement to provide for the disposition of their respective estates, or that Mrs. Cardwell relied upon any disposition of property made by her husband’s trust; asserted that Article II, § 2.7 of Mrs. Cardwell’s trust instrument referred to gifts, provision and arrangements for the grandchildren extrinsic of any terms of Mr. Cardwell’s revocable trust; and further stated that Mr. and Mrs. Cardwell expressly reserved and recognized the right and power of each to alter, amend and revoke in whole or in part, their trusts.
The suit was tried as a non-jury case. The trust instruments of the H. W. Cardwell and Katherine S. Cardwell Revocable Trusts, and all amendments to both, the H. W. Cardwell Irrevocable Trust, and other documents listed in the Pretrial Conference Order were introduced as evidence, together with interrogatories and answers. No oral testimony was introduced, or evidence extrinsic to the documents themselves. The parties stipulated as to the family relationships, dates of death of Mr. and Mrs. Cardwell, execution of the documents and other basic facts heretofore recited.
After considering the Cardwells’ revocable trusts and the various amendments thereto, Mr. Cardwell’s irrevocable trust, the pleadings and interrogatories the trial court made the following findings of fact:
“17
“After considering all of the evidence this Court is compelled to find that the provision made by Mr. Cardwell in his revocable trust of August 12, 1960, for the benefit of the plaintiffs herein, as amended in January of 1962, wasi made pursuant to agreement with Mrs. Cardwell. It is impossible for this Court to believe that a man and wife with children and grandchildren, could on the same day execute separate instruments, testamentary in nature, wherein the husband excluded the children of the parties, and the wife excluded the grandchildren of the parties, and each explained this exclusion by a recital that the other had made ample provision for the excluded class, in the absence of an agreement arrived at between themselves to do just that.
18
"The stated purpose of Mr. Cardwell’s irrevocable trust of the same date, August 12, 1960, and Mrs. Cardwell’s consent to and execution thereof, clearly demonstrates that both Mr. and Mrs. Cardwell contemplated on August 12, 1960, that their grandchildren would eventually inherit or receive substantial properties and/or moneys to manage and invest. In fact, Mr. Cardwell did originally provide that the bulk of his estate would go to the grandchildren, but did later reduce this by the January 1962 amendment to a specified $500,000, with the consent of Mrs. Cardwell. There can be no question but that this amendment made to the provision for the grandchildren was the result of further agreement between Mr. and Mrs. Cardwell.
19.
“Mrs. Cardwell lived almost four years after the execution of her revocable trust. She refrained from making any modifications of her trust to include her grandchildren. She was fully aware of the provisions contained in Mr. Cardwell’s revocable trust for the benefit of their grandchildren, and in fact had consented to a reduction of same in January of 1962. The recital in her trust instrument explaining her exclusion of her grandchildren demonstrates that it was not her intent that they be cut off, but rather that she was omitting them in her trust in reliance on the provision being made for their benefit in. Mr. Cardwell’s trust; and at all times from the execution of these revocable trust instruments by Mr. and Mrs. Cardwell, up to and including the time of Mrs. Cardwell’s death, Mr. Cardwell had in truth and fact made provision for the grandchildren of the parties in his revocable trust, and excluded his children, and Mrs. Cardwell had made provision for the children in her revocable trust, and excluded the grandchildren.
20
“Neither Mr. or Mrs. Cardwell’s revocable trust, nor any amendments thereto were ambiguous, and said instruments show on their face by the terms and provisions thereof that they are contractual in character.
21
“Mr. Cardwell breached the agreement between himself and Mrs. Cardwell relating to disposition of their collective estate as it applied to their grandchildren when he unilaterally amended his revocable trust less than a year after the death of Mrs. Cardwell in May of 1965, and eliminated therefrom all direct benefits to the grandchildren.”
The trial court concluded that the prior decisions of this court enforcing contractual wills (In re Estate of Miller, 186 Kan. 87, 348 P. 2d 1033; and In re Estate of Chronister, 203 Kan. 366, 454 P. 2d 438) are applicable to reciprocal, inter vivos trusts that are testamentary in character; that the reservation by Mr. and Mrs. Card-well of the right to amend, alter or revoke any part of the trust agreement "cannot be interpreted to mean that part of the contract between the parties was that either of them could breach it at will”; therefore, judgment was entered directing the trustees to establish from the assets of Mr. Cardwell’s trust estate a trust for each appellee in the principal amount of $125,000 to be administered in accordance with the provisions contained in the January 17, 1962, amendment to Mr. Cardwell’s revocable trust.
The trial court also awarded $40,000 for the appellees’ attorneys and the appellants’ attorneys as reasonable attorneys’ fees. The trial court considered as factors in determining the allowance of reasonable attorneys’ fees the amount, nature, and character of the services rendered, the skill and experience required to perform such services, time and effort expended, the amount of money or value of property involved, the results or benefits obtained from the services performed, and the professional character and standing of the attorneys. (See, Wollard v. Peterson, 145 Kan. 631, 66 P. 2d 375; and Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219.)
The appellants have duly perfected this appeal from the trial court’s findings of fact, conclusions of law and the order of allowance of attorneys’ fees.
Counsel for the appellants argue in their brief:
“. . . We feel, however, that the law relating to contractual wills is directly applicable to the case at hand, for this case, as with the contractual will cases, involves an alleged contract relating to property succession. Moreover, Mr. and Mrs. Cardwell’s revocable trusts, making disposition of the major portion of their estates, were effectively used as will substitutes.
“The parties to this dispute are in agreement that the law relating to contractual wills, if not controlling, is analogous. In substantial part, this position is born of necessity. An exhaustive search by counsel for the trustees, including the comprehensive treatises by Professors Scott and Bogert (specifically, those sections pertaining to revocable trusts and to' constructive trusts), has produced no cases involving trusts that bear even tangentially on the matter in dispute.
“The trustees feel that this circumstance is not accidental. Stripped to its essentials, the contention made by the plaintiffs is rather remarkable. They contend that a trust instrument which by its terms provided that ‘Settlor reserves the right to alter, amend or revoke, in whole or in part, this trust instrument and, all trusts created pursuant hereto,’ and which was amended by the Settlor on two occasions ‘Pursuant to the right reserved to me as Settlor,’ (1) Was not amendable without the consent of the Settlor’s wife during her lifetime, and (2) was not amendable by the Settlor at all (with respect to dispositions to the grandchildren) after his wife’s death. In other words, the plaintiffs contend that the explicit language of the trust instrument, known to and understood hy both the Settlor and his wife (who joined in the execution of the trust) is not controlling; rather, that the couple agreed — contractually agreed — that upon the death of one spouse the survivor would not revoke or modify his trust as it pertained to the couple’s grandchildren.”
Our decisions concerned with whether or not joint or reciprocal wills were contractual in character are numerous. (In re Estate of Chronister, supra; In re Estate of Thompson, 206 Kan. 288, 478 P. 2d 174; and the cases cited therein.) It was recognized long ago that a single instrument may be both a will contractual in nature, and a contract testamentary in nature; as a will it is revocable but as a contract it is enforceable; and although a contractual will revoked by execution of a second will, cannot be probated, it may nonetheless be enforced as a contract against the estate of the testator breaching it (Menke v. Duwe et al., 117 Kan. 207, 216, 230 Pac. 1065). This is true not only when the will is joint in form and contained in a single common instrument, but also when it is drawn in the form of a separate document. (In re Estate of Chronister, supra.)
The existence or nonexistence of an agreement or contract is in its very nature a fact. If a joint and mutual will is the result of a contract, under which the making of each will is consideration for making the other, it is necessary to establish that fact by direct or circumstantial evidence. Furthermore, it is essential to the validity and enforcement of a contract for the execution of wills containing bequests and devises, which are reciprocal between the parties, that the contract be definite, certain and unequivocal as to the parties, the subject matter and the considerations. (In re Estate of Miller, supra.) To establish an agreement for mutual will's there must be full and satisfactory proof of the agreement, which cannot be supplied by presumption. (Menke v. Duwe et al., supra.)
In Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421, a will which had been executed jointly by a husband and wife was held by this court to be contractual on its face. In response to a contention that there was no evidence to establish that the testators had entered into any contract to make a will, the court replied:
". . . How could such a will be voluntarily executed if there was no agreement or understanding that it would be made? The will itself, its terms, and its execution, are evidence that such a contract was made. . . .” (p. 273.)
Lewis has been interpreted as holding that:
“. . . [W]here a joint and mutual will is executed by a husband and wife the will itself and its terms may be taken into consideration as circumstantial evidence upon which to base a finding that the will is contractual. This is not to say that the execution of a joint and mutual will compels such an inference.” (In re Estate of Miller, supra, p. 97.)
Mr. Justice Fontron, speaking for the court in In re Estate of Chronister, supra, succinctly summarized the following rules from our prior decisions in which wills were claimed to be contractual:
". . . (1) Whether a will is contractual, be it a joint will or one of separate wills, is a question of fact which must be established by proof. (2) The mere fact that a will is joint does not in and of itself establish it to be the result of a pre-existing agreement. (3) A joint and mutual will and the terms and provisions thereof, may be considered sufficient as circumstantial evidence to establish that it was executed pursuant to an agreement. (4) Where a joint will shows on its face by the terms and provisions thereof that it is contractual in character, extrinsic evidence is not admissible for the purpose of proving otherwise. (5) Where there is ambiguity from the language used in a joint will as to whether or not it is based on a contract, extrinsic evidence is admissible to establish either the existence or nonexistence of a contract.” (p.372.)
In 'the case at bar we áre confronted with the Cardwells’ separate, revocable trust declarations (with the various amendments thereto) and Mr. Cardwell’s irrevocable trust which was executed (with Mrs. Cardwell’s consent) the same day the revocable trusts. These documents taken together constitute the Cardwells’ total estate plan. If the Cardwells made a contract, this court must find in these documents the necessary elements of that contract.
While the trial court found the revocable trusts to be contractual, this court’s scope of review is not limited to determining whether or not the trial court’s finding is supported by the evidence. When the evidence from which the trial court’s finding was made is wholly written and documentary in form, the reviewing court must decide for itself what the facts establish, substantially as it would if the case was originally in this court, for the trial court has no better opportunity to weigh the evidence than a court of review with the same evidence before it. (In re Estate of Miller, supra.)
For the reasons hereafter assigned it is our judgment the provisions made by H. W. Cardwell in his revocable trust of August 12, 1960, for the benefit of the appellees herein, as amended January 17, 1962, were made pursuant to a contract with his wife Katherine S. Cardwell which is enforceable as a claim against the estate of H. W. Cardwell, deceased.
The appellants attempt to state the appellees’ position in the negative — that Mr. and Mrs. Cardwell contractually agreed that upon the death of one the survivor would not revoke or modify his trust as it pertained to the couple’s children or grandchildren. The issue must be stated in the positive — whether the parties contractually agreed that Mr. Cardwell would make provision for the benefit of their grandchildren in exchange for Mrs. Cardwell’s provision for the benefit of their children.
The general principle of contract law here applicable is that a court may ascertain the existence and terms of an agreement from a combination of written instruments and the acts of the parties in connection therewith. (Allen v. Bowling, 173 Kan. 485, 249, P. 2d 679.)
On the facts in this case the various trust instruments used by the parties in making disposition of the major portion of their estates, were effectively used as will substitutes, and of necessity the court must rely upon its prior decisions which establish the circumstances under which a contract can properly be found to exist from the provisions of joint and mutual wills.
Various approaches have been taken to determine whether a will was executed pursuant to a contractual agreement. In a few instances, wills construed by this court have contained specific references to the fact that they were being executed pursuant to an agreement. (Warwick v. Zimmerman, 126 Kan. 619, 270 Pac. 612; Berry v. Berry, 168 Kan, 253, 212 P. 2d 283; and In re Estate of Buckner, 186 Kan. 176, 348 P. 2d 818.) Extrinsic evidence of a preexisting agreement to execute a joint will or mutual wills has also occasionally been provided. (Menke v. Duwe, et al., supra; and In re Estate of Wade, 202 Kan. 380, 449 P. 2d 488.) But, for the most part, the only evidence available is the will or wills executed by the parties involved. The terms of the will may show an implication that its execution was the product of a preexisting agreement. The fact a will contains no reference to an agreement is not conclusive. A contract may be implied from the known circumstances under which the parties execute a joint will, such as their family relationship as reflected by the will itself, its terms and its execution, and the intention of the testators as gathered from the four comers of the instrument itself. In such a case, extrinsic evidence is not admissible for the purpose of proving otherwise. (In re Estate of Chronister, supra; and In re Estate of Thompson, supra.)
Where specific reference to a prior contract is lacking, wills have been construed as contractual on the basis of specific provisions or terms. A provision frequently considered by the court to determine whether a will is contractual is the manner in which all of the parties’ remaining property will be distributed upon the death of the survivor. (In re Estate of Chronister, supra.)
The overall pattern of disposition of the family estate by the Cardwell trusts was simple. In general, each settlor retained a life interest with power of invasion in his or her trust. By identical reciprocal provisions each gave a life estate to the other in the same specific property and provided for the same disposition of that property on the death of the survivor.
Mr. Cardwell gave the remainder of his trust property, which was the substantial portion, to their grandchildren in trust, subject to any necessary life income for his wife and certain small, short-term life income grants to six friends or relatives. Mrs. Cardwell gave the remainder of her trust property, which was the substantial portion, to their children in trust for life with power of appointment.
Another provision to be considered in determining whether joint or mutual wills are made pursuant to a contract is whether there are “carefully drawn provisions for the disposition of any share in case of a lapsed residuary bequest.” (In re Estate of Chronister, supra; and In re Estate of Tompkins, 195 Kan. 467, 407 P. 2d 545.)
As found by the trial court, the trust instruments herein each contained detailed and explicit provisions relating to the disposition of the trust estate in the event any beneficiary should predecease the settlor.
The manner in which the trusts were executed provides further evidence that the parties were disposing of their estates pursuant to an agreement: The preamble of Mr. Cardwell’s trust recited that he was “joined herein by my wife.” The instrument was consented to and executed by Mrs. Cardwell. The preamble of Mrs. Cardwell’s trust recited that she was “joined by my husband.” The instrument was consented to and executed by Mr. Cardwell.
Ry obtaining the “joinder” and “consent” of his or her spouse, each settlor was gaining the assurance that distribution of his estate under the provisions contained in his or her trust would not be altered if he or she died first. This method of executing the trusts indicates the intent of each party to be bound by the provisions contained in both trusts. It is similar to the use of plural pronouns in joint wills which this court has previously found to constitute evidence of a contract. (In re Estate of Chronister, supra; and In re Estate of Tompkins, supra.)
The most persuasive consideration which indicates a preexisting agreement between Mr. and Mrs. Cardwell is the provision in each of the Cardwell’s trust explaining the omission of certain heirs from the benefit of the trust estate created therein by referring to the other trust, thereby revealing the complete estate plan of the parties. Mr. Cardwell omitted distributing primary benefits to his children in the 1960 trust and in all subsequent amendments thereto; and Mrs. Cardwell omitted primary benefits for her grandchildren. Mrs. Cardwell explained the omission by stating “that Settlor’s husband has made ample provisions for such grandchildren”, and Mr. Cardwell explained the omission stating “that Settlor’s wife has made ample provisions for such children.”
We cannot believe a grandmother would disinherit her grandchildren and a father would disinherit his children, unless the parties had a prior agreement that provisions made by the other spouse for the excluded children (or grandchildren) would be binding.
A similar situation occurred in In re Estate of Thompson, supra, where the makers of a joint will left all of the property of the first to die to the survivor with the explanation that “we make no provision for our children, Ray Thompson and Fern Thompson, leaving it to the survivor of us to make such provision as he or she sees fit.” The court concluded:
“. . . We do not presume under the attending circumstances, that a father and mother would disinherit their only children by written instrument, unless they had a prior agreement or contract with each other that the survivor would make such provisions for their benefit as he or she saw fit.” (p. 292)
As a result, all of the property in the estate of the first to die (the husband) was held to pass to the survivor (the wife), even though the latter was incompetent at the time of her husband’s death and subsequently died intestate.
The explanation given by the makers of the joint will in Thompson for what otherwise would have been the disinheritance of their children was, in and of itself, sufficient evidence of the existence of a contract.
The Cardwell trusts go one step further. An explanation of the omission of the children (or grandchildren) in one trust is given in recognition of the provisions already made for them in the other trust. Since all of the Cardwell family members are covered by the provisions contained in the two trusts, it is certain that their execution was preceded by negotiation and agreement between Mr. and Mrs. Cardwell concerning the manner in which their children and grandchildren would be treated under the estate plan as a whole. The survivor was not given the right or duty to provide for the children or grandchildren as he saw fit, because the parties had already reached agreement on what the provisions should be.
Paragraph 2.7 in the respective trusts of Mr. and Mrs. Cardwell was the only provision which served no function insofar as the creation or management of each trust was concerned. When viewed strictly as trusts, the insertion of these two paragraphs served no purpose. But, when the instruments are examined for evidence of a contract, these paragraphs can have no purpose other than to express the belief of the parties that their combined estates would be disposed of pursuant to agreement represented by the execution of their trusts.
It is of some significance that even though there were various amendments to the original trust instruments, the settled purpose of providing certain benefits for the children through Mrs. Card-well’s trust and other benefits for the grandchildren through Mr. Cardwell’s trust, remained intact at the time of Mrs. Cardwell’s death in July 1964. The retention of the same basic estate plan (though the grandchildren’s benefits were sharply decreased by the 1962 amendment of Mr. Cardwell) through the various amendments indicates a contractual agreement between the Cardwells. (See, Eikmeier v. Eikmeier, 174 Kan. 71, 254 P. 2d 236; and St. Denis v. Johnson, 143 Kan. 955, 57 P. 2d 70.)
The appellees attack the trial court’s judgment by suggesting that Mrs. Cardwell’s statement in paragraph 2.7, that her grandchildren are not to receive any primary benefits from her trust because of ample provisions made by Mr. Cardwell, refers to the “H. W. Cardwell Irrevocable Trust” rather than his revocable trust, and, since the irrevocable trust remains intact, there has not been a breach of any agreement the parties might have had. This interpretation of paragraph 2.7 is too restricted.
Portions of the preamble to the irrevocable trust which have heretofore been set out clearly demonstrate it was established for the purpose of teaching the grandchildren to manage funds before they received their inheritance. To achieve this purpose the trust instrument directed distribution of all income to the grandchildren, reciting that “such distributions are designed to provide a fund for investment and management at the direction of [each of the grandchildren].”
There is no dispute that paragraph 2.7 of Mr. Cardwell’s trust referred to and relied upon the benefits created for his children in Mrs. Cardwell’s revocable trust. In fact, Mr. Cardwell continued to recite his reliance upon his wife’s distribution in his 1965 amendment. Therefore, it is unreasonable to construe Mrs. Cardwell’s paragraph 2.7 so as to exclude Mr. Cardwell’s revocable trust. Mrs. Cardwell was obviously referring to both the revocable and irrevocable trusts established by Mr. Cardwell, when she omitted the grandchildren from her trust in reliance upon the “ample provisions” made for them by her husband. The irrevocable trusts were executed in contemplation of the inheritance of “substantial properties” by the grandchildren. On August 12, 1960, when these trusts were established “substantial properties” (well over $1,000,000) were allocated to the grandchildren in the overall estate plan by Mr. Cardwell’s revocable trust.
The appellants argue the evidence in this case constitutes no more than evidence of an understanding of a common plan and is insufficient to make out a contract.
To the contrary, the evidence is sufficient to establish an agreement between Mr. and Mrs. Cardwell under the rules applicable to joint and mutual wills, which we hold to be applicable to the overall estate plan set forth in the trust documents executed by Mr. and Mrs. Cardwell. The requirements set forth in In re Estate of Miller, supra, are that the contract must be definite, certain and unequivocal as to the parties, the subject matter and the considerations. There is no confusion as to the parties to the agreement, and quite plainly the subject matter of the agreement is that Mrs. Cardwell was to provide in her trust for their children and Mr. Cardwell was to provide in his for their grandchildren. The mutual promises of the Cardwells were sufficient consideration to support their agreement as to the disposition of their property after death. (In re Estate of Wade, 202 Kan. 380, 449 P. 2d 488; and Sparks, Contracts To Make Wills [1956] p. 34.)
The appellees assert the trial court improperly construed the Cardwells’ trust declarations by ignoring the plain meaning of the provisions in each trust instrument which explicitly reserved to each settlor the right to alter, amend or revoke the instrument. It is argued that the trial court’s interpretation goes outside the language of the instruments “in an effort to give effect to what it conceives to have been the actual intent or motive of the settlor.”
As previously discussed, we do not agree that the plain and unambiguous intention of the parties was to' allow the surviving spouse to alter his or her preexisting agreement as to the mutual distribution of their estates as embodied within the trust declarations. We have come to this conclusion by employing the familiar rule of construction, that the settlor’s intention as garnered from aII parts of the instrument is to be given effect, and doubtful or inaccurate expressions in the instrument should not override the obvious intention of the settlor. (54 Am. Jur. Trusts § 17; see, In re Estate of Miller, supra.) Here all trust instruments must be construed together.
We perceive no inconsistency between the fact that the parties expressly reserved the right to alter, amend or revoke their trusts and our construction of the instruments as being contractual in nature. The right of each settlor to amend or revoke his or her trust proves nothing about the existence or non-existence of a contract.
Under the law with respect to joint and mutual wills, it is readily apparent the power to amend or revoke is irrelevant as to whether or not a contractual relationship exists between the parties. Wills are ambulatory and therefore may be revoked or amended at any time before the testators death. Despite this inherent feature of revocability, it is the general rule that joint or mutual wills which are contractual in nature prevent the surviving spouse from escaping the obligations of his or her agreement by revoking or amending the will. There is no substantial reason why the revocable trusts in the instant case should be treated differently than joint or mutual wills. The reservation of the right to alter, amend or revoke an inter vivos trust does not destroy the Cardwells’ agreement.
K. S. A. 58-2417 provides:
“Every power, beneficial or in trust, shall be irrevocable, unless an authority to revoke it is reserved in the instrument creating the same.”
The parties to this appeal agree the Cardwells used the trusts executed by them effectively as will substitutes. Because of 58-2417, supra, it was necessary for the.Cardwells to expressly reserve the right to revoke or amend their trusts to retain the same flexibility in their estate planning which they would have had by employing the expedient of mutual wills. Each of them subsequently exercised his or her power of amendment on various occasions with the other’s consent. By the same token, their reservation of the power to invade the trust corpus gave them the same right which they would have had under a will to conserve or expend their own property. After Mrs. Cardwell died, Mr. Cardwell’s position was not distinguishable from a testator to a joint or mutual will, i. e., he had the authority to amend his testamentary instrument, but any breach of his agreement with Mrs. Cardwell would be enforceable as a contract against Mr. Cardwell’s estate. (Menke v. Duwe, et al., supra.)
The real issue is whether the exercise of the power to amend or revoke either trust must be consented to by the other settlor. The fact that each settlor did consent to the amendments executed by the other between 1960 and the date of death of Mrs. Cardwell strongly indicates that this was the understanding between the parties.
Each of the three amendments executed after August 12, 1960, and prior to Mrs. Cardwell’s death on July 15, 1964, was approved by both parties. The general estate plan remained intact throughout, although the benefits to be received by the grandchildren were reduced with the consent of Mrs. Cardwell in the 1962 amendment to the H. W. Cardwell Revocable Trust. And, when this amendment was executed, Mr. Cardwell reiterated his reliance upon the provisions made by his wife in her trust for their children — something which he would not have been able to do with any confidence if he had not first obtained her consent to the reduction in benefits for the grandchildren.
Mrs. Cardwell died without revoking or reducing the provisions in her trust for the benefit of the children. Mr. Cardwell’s acceptance of the estate plan became final upon the death of his wife as it pertained to the grandchildren. Even after Mr. Cardwell’s 1965 amendment, he continued to rely upon the benefits for the children contained in his wife’s trust by a recital in the 1965 amendment.
The foregoing course of conduct followed by Mr. and Mrs. Cardwell, after the execution of the trusts, further substantiates the existence of an estate plan made pursuant to an agreement which could not be modified without the consent of both parties.
The appellees maintain the allowance of fees for their attorneys was appropriate. They argue the construction of trust instruments and the benefit ensuing to the estate therefrom forms the basis upon which courts of equity have traditionally allowed attorney fees against trust property (citing, Central Trust Co. v. Harris, 152 Kan. 296, 103 P. 2d 902; In Re Living Trust Created by Atwood, 227 Minn. 495, 35 N. W. 2d 736 [1949]; 9 A. L. R. 2d 1181 to 1189; Jesser v. Mayfair Hotel, Inc., 360 S. W. 2d 652 [Mo. 1962]).
Generally, it may be said attorney fees and expenses may not be allowed unless authorized by statute, (In re Estate of Murdock, 213 Kan. 837, 519 P. 2d 108; and In re Estate of Hannah, 215 Kan. 892, 529 P. 2d 154.)
In numerous cases this court has held that where a meritorious action is brought to construe a will, attorney fees are allowable under the provisions of K. S. A. 59-1504 (Baldwin v. Hambleton, 196 Kan. 353, 361, 411 P. 2d 626). In the case of In re Estate of Reynolds, 176 Kan. 254, 270 P. 2d 229, it was stated':
“. . . Where the services of the claiming attorney have beer beneficial to the estate or are necessary for its proper consideration, fees have been allowed attorneys, but where the attorney acts for the benefit of his own client, or for other purposes not helpful in the administration of the estate, such fees are not allowed.” (p. 258.)
Where a controversy exists on a doubtful question of law involving the provisions of a will, it has been held the trial court should allow reasonable attorney fees out of the estate to the defeated as well as the successful party. (In re Estate of Sowder, 185 Kan. 74, 340 P. 2d 907.)
The appellees rely upon Central Trust Co. v. Harris, supra; and Baldwin v. Hambleton, supra, as authority for the allowance of fees in this case. In Harris the trustees of a residuary trust created by a will brought an action against the beneficiaries in the district court asking to be instructed to manage the trust in a manner described in the petition. The trustees’ instructions were denied and the trial comb found that it was not empowered by law to allow the beneficiaries attorney fees. On appeal it was held the trial court had the authority and a duty to fix a reasonable attorney’s fee for the beneficiaries. The court first commented that it was difficult to see why the action could not be considered a suit to construe a will, since the whole proceedings required examination and consideration of the will creating the trust. However, the opinion continues as follows:
“Even should it be held that this was not a suit technically to construe a will, the same reasons that make it proper to tax an attorney fee as costs in such a case apply with equal force to this case.” (p. 302.)
The instant case must be distinguished from Harris. The present action was brought by the appellees to enforce a contract as a claim against the estate of H. W. Cardwell, deceased. In Harris the beneficiaries, who were awarded the attorney’s fees, defended in an action brought by the trustees seeking instructions from the court as to the management of the trust. Those equities which impelled the court in Harris to grant attorney’s fees are not present in the case at bar.
The appellees’ reliance upon Baldwin is also misplaced. There a declaratory judgment action was filed by a granddaughter of the testator claiming a vested remainder was created by the will. It was held through the granddaughter’s successful efforts the language of the will was properly construed, and the testator’s intention properly carried out. Consequently the district court had the authority and duty (K. S. A. 59-1504) to allow attorney fees as costs of the action. (K. S. A. 60-2003.)
The allowance of attorney’s fees herein is controlled by, In re Estate of Davis, 171 Kan. 605, 237 P. 2d 396. There a decedent’s divorced wife filed a claim against his estate for specific performance of certain postnuptial contracts. The district court sustained her claim but denied anything for counsel fees. On appeal this court affirmed, saying:
“We find nothing in the section of the statute [59-1504] from which we have just quoted which can be construed as contemplating that a claimant is entitled to recover attorneys fees or other expenses incurred in the prosecution of a suit in probate court for specific performance of contracts such as are here involved. . . (p. 613.)
Here the appellees claim benefits made pursuant to a contract between H. W. Cardwell and Mrs. Cardwell, which they assert constitutes a claim against the estate of H. W. Cardwell, deceased. They prevailed in the trial court on their claim against the estate of H. W. Cardwell, deceased, but die trial court had no statutory authority to award the appellees’ attorneys fees under these circumstances.
No appeal has been perfected from the order of the trial court awarding attorney’s fees to the trustees for their attorneys. (See, K. S. A. 59-1717.)
The judgment of the lower court upholding the claim of the appellees against the estate of H. W. Cardwell, deceased, is affirmed, but as to the allowance of attorney’s fees for the appellees the judgment is reversed.
Fromme, J., not participating.
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Per Curiam:
This is an appeal from the district court’s denial of an application for a writ of habeas corpus by the appellant who admits to being lawfully confined in the Kansas State Penitentiary. While the record does not enlighten us, presumably the appellees are members of the prison Disciplinary Board.
Appellant was disciplined after hearing for having unauthorized items of personal property in his possession. The contraband was confiscated and the appellant was placed on fifteen days restriction. He appealed to the Director of Penal Institutions under the procedure provided for by regulation. The Director approved the action of the Board.
The appellant contends he was denied due process of law by the failure of the Board to furnish a transcript of the proceedings before the Disciplinary Board as a basis for his appeal to the Director. No transcript is required by the Board’s procedural rules in oases involving infractions of prison rules, such as this one, in “Class II Offenses” of a relatively minor nature.
We find nothing in the record to indicate that at any stage of the proceedings has appellant been denied due process of law according to the standards applicable to internal prison administrative procedures. No further elaboration is necessary, particularly in view of the fact that the question has long since beoome moot, as appellees pointed out in the district court. The fifteen days of restricted activity imposed on appellant had expired before he filed his petition in the district court. There is no showing that appellant’s normal freedom of activity in prison is in any way now restricted by any act of the appellees. To grant a writ of habeas oorpus would be an idle gesture even if there were merit in appellant’s claim of a denial of his constitutional rights.
The judgment is affirmed.
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Per Curiam:
This is an action to recover the sale price of popcorn. Judgment was entered in favor of the plaintiff, Scott T. Muse, Jr. The defendant, Bernard Baker, has appealed.
In April, 1969, Mr. Muse entered into a contract to plant and harvest 66 acres of popcorn for Western Marketing Company, herein called Western. Under date of September 26, 1969, Western sent Muse a letter, signed by Bernard Baker, advising that Muse might store the popcorn in his own bins after harvest and receive storage of one cent per bushel per month, and that trucks would pick it up as it was needed for processing.
Subsequent to the time the popcorn was harvested and placed in his bins, Mr. Muse rented his land. He thereupon attempted to contact Western so that he might give his tenant possession of the bins and get his money out of the popcorn. At this time he learned, through correspondence and telephone conversations with Bernard Baker, in which he was demanding payment for the crop, that the popcorn company was no longer doing business as Western Marketing Company but as Baker and Company.
Mr. Baker testified that he became manager of Western about the middle of May, 1969; that Whiteley Popcorn Company doing business as Western Marketing Company was having difficulties and W. R. Whiteley, the sole owner of Western, changed the name to Baker and Company on January 1, 1970. Baker further contended that he continued to work for Mr. Whiteley as an employee only, until October 1, 1970, at which time he quit Whiteley and set up his own business as sole owner, operating under the name of Baker Popcorn Company.
Mr. Muse testified that his conversations with Baker resulted in Mr. Bakers agreeing to go ahead and take the popcorn, paying the price called for in Western’s contract. On June 26 and June 27, 1970, the Muse bins were emptied and the popcorn was trucked to Stratford, Texas, at Baker’s direction, where it was processed and then sent to Mexico. Muse never did receive his money for the popcorn although he continually demanded payment of Baker. Mr. Baker contended that at all times material to this action he was only an employee of W. R. Whiteley; that at no time was he a partner or proprietor of Western Marketing Company nor of Baker and Company; and that he was not personally liable.
However the trial court, sitting as the finder of the facts, concluded otherwise. It found as follows:
“. . . ‘That Bernard Baker either was a partner or a proprietor of Baker & Company or placed himself in such a position by allowing his name to be used, by his acts and failure to warn, as to make him liable for the debts of Baker & Company. That in a situation such as this when he signs correspondence, he uses the same telephone number, he in no way warns people when they are doing business with Bernard Baker or when they are doing business with Baker & Company that they are not actually doing business with him, that his banking account shows his partnership account part of the time, and his individual account part of the time; that he cannot do this and that he has held himself out to the public as being either the proprietor or partner.’ ”
On appeal, Mr. Baker alleges that the trial court erred in finding him to be a partner or proprietor of Baker and Company and that the finding is not supported by the evidence. The defendant further contends the trial court erred as a matter of law in holding he was a partner or proprietor and therefor liable to plaintiff.
It has long been the law of this state that “A person may estop himself from denying his liability as a partner, where such relationship does not exist in fact, by holding himself out as such, or where his course of conduct and representations leads another to believe he is a partner, and the party misled extends credit in reliance thereon.” (Phillip Van Heusen, Inc. v. Korn, 204 Kan. 172, 460 P. 2d 549, Syl. ¶ 3, and cases cited therein.)
Bearing in mind the rule expressed in Van Heusen, this is essentially a fact case. It thus becomes the duty of this court to ascertain whether there is substantial competent evidence to sustain the trial court’s; findings and judgment. (Wehking v. Wehking, 213 Kan. 551, 516 P. 2d 1018; Union National Bank & Trust Co. v. Acker, 213 Kan. 491, 516 P. 2d 999.) We must answer that question affirmatively; the record discloses evidence substantially supporting the findings made by the court.
We have fully reviewed the record and conclude the judgment entered by the district court was correct.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered 'by
Kaul, J.:
Appellant-defendant (Glenn Gene Rasler), a probationer under suspension of sentencing, appeals from an order of revocation. On January 2, 1973, defendant entered a plea of guilty to a charge of unlawful possession of a firearm (K. S. A. 21-4204). The trial court suspended imposition of sentence for one year on condition that defendant spend sixty days in the county jail and thereafter comply with the conditions of probation specified by the court which were generally those enumerated in K. S. A. 21-4610.
The first condition specified in the court’s order was that defendant not violate the law in any manner. The record indicates that der — released following his sixty day term in the countv w;1 on or about March 12, 1973. Shortly thereafter, on March 18, 1973, defendant was charged with two counts of aggravated assault and one count of unlawful possession of a firearm after conviction of a felony. The charges stemmed from shooting incidents which took place during the night of March 18, 1973, on a street and in a night club in Wichita. The filing of these charges against defendant precipitated a hearing for the revocation of his probation which was heard on March 27,1973.
Defendant was represented by counsel at the revocation hearing and presented the testimony of several witnesses tending to establish an alibi with respect to the assault charges. At the conclusion of the hearing defendant requested that the trial court defer its ruling until after defendant’s trial had been completed on the charges stemming from the incidents which occurred on March 18, 1973. The trial court granted the request. Thereafter, on June 14, 1973, defendant was convicted of aggravated assault and unlawful possession of a firearm. Following this conviction the trial court reconvened the revocation hearing, revoked the probation entered in the first case, and sentenced defendant to a term of not less than three nor more than ten years for the firearm violation that he had pled guilty to on January 2,1973.
Defendant filed a motion to set aside the order which was overruled. Thereafter defendant filed a notice and perfected this appeal.
The record discloses that defendant had the assistance of counsel at all stages of the revocation proceedings.
Defendant specifies five points on appeal — in the first three of which he contends that K. S. A. 22-3716, dealing with the arrest of a probationer and procedure on revocation, is unconstitutional for several reasons. He first asserts that 22-3716 is unconstitutional because he claims that it establishes no definite grounds upon which probation may be revoked or denied. The statute clearly specifies that a violation of any of the conditions of probation is grounds for revocation. This is set forth in the first sentence of subsection (1) of the statute which reads:
“(1) At any time during probation or suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release, or a notice to appear to answer to a charge of violation. . . .”
In the instant case a condition (a) of the order in question specifically provided that defendant not violate the law in any manner. Obviously, defendant must have known the charge he had to meet at the revocation hearing. In the recent case of Toman v. State, 213 Kan. 857, 518 P. 2d 501, we considered 22-3716 and found:
“This statute appears to comply with the requirements of the due process clause of the United States Constitution as judicially declared in Morrissey v. Brewer, 408 U. S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593.” (p. 859.)
We find no ambiguity or uncertainty in the statute in this regard which would make its constitutionality questionable.
Defendant’s next constitutional argument is that 22-3716 is in conflict with the reasonable doubt standard of K. S. A. 21-3109. Defendant’s position on this point appears to be that the constitution requires that the state meet the reasonable doubt standard in order to revoke a suspended sentence. At this point we should pause to observe that 22-3716 essentially puts revocation of probation and revocation of a sentence on the same level. The one practical difference is that when a suspended sentence is revoked the sentencing must follow. While revocation is not a part of the criminal prosecution, sentencing is. However, the Kansas statute gives a defendant the right to be represented by counsel at a hearing on revocation of probation or of a suspended sentence; thus, as a practical matter any difference between the two disappears in Kansas.
When considering the standard of proof required in a revocation proceeding in State v. Nelson, 196 Kan. 592, 412 P. 2d 1018, this court quoted with approval from 24 C. J. S., Criminal Law, § 1618 (11) (d), pp. 915-916, as follows:
“ ‘The quantum of evidence necessary to authorize revocation of probation is not the same as that required on trial of an indictment, but is a matter within the sound discretion of the trial court. To warrant a revocation and commitment it is sufficient that the violation of conditions is established by clear and satisfactory evidence, or by evidence sufficient to convince the court that a violation of the conditions has been committed. Slight evidence may be sufficient, and it is not necessary that the violation be established beyond a reasonable doubt or even by a preponderance of the evidence. . . ” (p. 596.)
In Morrissey v. Brewer, 408 U. S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593, the court observed:
“We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. . . .” (p. 480.)
Concerning the degree of proof required in revocation proceedings, American Ear Association Standards for Criminal Justice relating to Probation § 5.4 provides:
“(Hi) where the violation is contested, establishment of the violation by the government by a preponderance of the evidence.” (p. XI-18) (Emphasis supplied.)
The provisions of 22-3716 are fully in accord with the ARA Standards on probation and the pertinent guidelines set forth by the United States Supreme Court in Morrissey v. Brewer, supra; and Gagnon v. Scarpelli, 411 U. S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756. Proof beyond a reasonable doubt of the violation of a condition of probation is not required by statute or constitution in a revocation proceeding.
In his third point defendant contends K. S. A. 22-3716 is unconstitutional and invalid for the reason that it could allow a trial court to revoke a probation based upon the commission of another crime when, following revocation, it is possible that the probationer could be found not guilty of the second criminal charge.
It is true, as defendant asserts, that under 22-3716 probation or a suspended sentence could be revoked based on the commission of another crime without the defendant ever being charged with the crime or even if charged the probationer is later acquitted of the crime. This result could only come about where a probationer was found by a preponderance of the evidence to have committed tihe second offense, but his guilt could not be established beyond a reasonable doubt in a criminal trial on the second charge. As we have previously pointed out, proof beyond a reasonable doubt to support a criminal conviction is not necessary to support an order revoking probation.
In his last two points on appeal defendant states since his two subsequent convictions are on appeal to this court and, thus, it was error to revoke his probation prior to disposition of his appeal. The identical contention was made in the recent case of State v. Woods, 215 Kan. 295, 524 P. 2d 221, wherein we held:
“Evidence that a probationer has been convicted by a jury of a crime committed while he was on probation is sufficient, under the circumstances shown of record, to sustain a finding by the trial court that the probationer has breached that condition of his probation requiring that he conduct himself as a peaceful and law-abiding citizen, even though an appeal from such conviction be pending.” (Syl.)
In Woods the defendant, as herein, argued that his probation should not be revoked on the ground that he had violated a state criminal law during the term of probation when the violation arose out of a conviction which had been appealed to this court. In the instant proceeding there was ample evidence submitted by the state to support the trial court’s order of revocation regardless of the disposition of defendant’s appeal to this court.
We hold that as to revocation of probation or a suspended sentence 22-3716 meets all constitutional requirements in such proceeding and that the requirements were fulfilled in the instant case.
The judgment is affirmed.
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Per Curiam:
On appeal from his conviction of attempted felony theft, growing out of his apprehension while in the process of removing cash from a service station cash register, appellant makes several contentions, none of which has merit.
(1) He says the information was deficient in that it stated the statute under which he was charged was K. S. A. 21-3701 instead of K. S. A. 1970 Supp. 21-3701. The offense was fully described in the information and appellant was aware of it. The complaint is trivial.
(2) He urges insufficiency of evidence as to his identification, the requisite amount attempted to be taken ($50.00 or more), and his intent. He was identified by the employee who caught him; there was testimony the amount of money was a “few” dollars less than $70.00; and his own statement was that he was “stealing”.
(3) He complains of the court’s failure to instruct on the lesser included offense of attempted misdemeanor theft. The evidence did not justify this submission.
(4) He asserts inadequate assistance of counsel and error in the court’s refusal of a continuance to permit appointment of new counsel. That which was said in State v.- Banks, 216 Kan. 390, 532 P. 2d 1058, on these points is applicable.
Judgment affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action in replevin. Judgment was for defendant for damages on a cross petition. Plaintiff appeals.
Plaintiff manufactures and sells incubators. The home office of the company is at Gettysburg, Ohio. Defendants desired to engage in the business of conducting a chicken hatchery. A man by the name of Talbot was employed by plaintiff to sell its incubators. The extent of the authority given Talbot is the deciding factor in this case. All parties are agreed that Talbot sold three incubators to defendants for plaintiff. The purchase price of these was $3,150. Defendants paid $150 and gave eight notes for the balance. Four of these notes, for $375 each, were due on the first of March, April, May and June of 1933, and four of them were due on the first of the same months in 1934. The contract entered into by the plaintiff and defendants provided that all payments were to plaintiff and that all deferred payments were to be made at the office of plaintiff. The contract further provided that title and right of possession to the machines should not pass until the entire purchase price and interest had been paid, and that in case of default in any paypient when due then the entire amount should become due and plaintiff should have the right to repossess the incubators. The date of the contract was November 21, 1932. When the first note was due, March 1, 1933, defendants did not pay it. On September 25, 1933, plaintiff brought a suit on the notes in the district court of Wyandotte county and procured the appointment of a receiver to take charge of the business of defendants. This receiver operated the business from September 26 to October 19, 1933. On the latter date the receiver was discharged. On January 26, 1934, plaintiff brought this action in replevin.
The petition alleged that plaintiff was the owner of the three incubators; that plaintiff was entitled to the immediate possession of them; that their value was $3,000; and that plaintiff had been damaged $500 by their detention. The prayer was for the possession of the incubators and for $500 damages for their wrongful detention. Only one of the defendants answered the petition. His amended answer and cross petition alleged that after the first of the notes became due and on or about the first of March, 1933, defendant entered into an oral agreement with plaintiff by its duly authorized agent whereby plaintiff agreed to extend the payment date on the notes for one year on the payment to plaintiff of $35 and that such an amount was paid plaintiff by defendant in accordance with the agreement. The answer further alleged that subsequently defendant entered into another oral agreement with the plaintiff whereby the plaintiff agreed that in consideration of the payment to it by defendant of $200 to be applied in reduction of the balance due on the notes that the payment date on the notes would be extended one year; and that the $200 was paid in accordance with the agreement; that on or about September 20, 1933, defendant made a further agreement with plaintiff whereby it was agreed that in consideration of the delivery to plaintiff by defendant of a smaller incubator than the ones involved in this action, the plaintiff would give defendant credit for an additional $225 and would grant defendant an extension of a year on the date of payment of the notes; and that even though defendant is ready to comply with the agreement the plaintiff has refused to grant the extension.
In the cross petition and counterclaim defendant alleged that about the 26th of September, 1933, plaintiff filed an action against the answering defendant and his brother; that at that time defendant owned and was operating the hatchery business and was earning therefrom about $200 a month; that at the same time the petition in the above case was filed the plaintiff secured the appointment of a receiver to take charge of the business of defendant without giving defendant an opportunity to be heard “and by false and fraudulent representations to the court.” The cross petition further alleged the receiver took charge of the business on September 26, 1933, was discharged as receiver on October 19, 1933, and was allowed a fee of $100 for his services and was directed to appropriate from the assets of the business the sum of $36.30 which was in the hands of the receiver when he was discharged; that the appointment of the receiver was wrongful and fraudulent, and that said false and fraudulent statements were made to the court orally in that plaintiff stated at the time it submitted said application for a receiver that this answering defendant was dissipating its assets, neglecting the business and threatening to remove, damage and injure the property described in plaintiff’s petition. The cross petition then alleged that as a result of the appointment of the receiver defendant was de prived of the operation of his business; his credit was ruined; his standing and reputation with his customers was impaired; his business in the sale of feed was destroyed, causing him to lose the sum of $125 a month which he was able to earn; that he would be deprived of the feed business for a long time in the future; that he was compelled to spend $150 for attorney fees to defend the receivership suit; and that the expenses of maintaining the receivership were, paid out of the funds of defendant. The prayer was that plaintiff take nothing by its petition and for judgment for damages on the cross petition in the amount of $5,000. All of the oral contracts set out in the answer were alleged to have been made by one S. H. Talbot, the agent of plaintiff.
The reply of plaintiff denied the agency and authority of Talbot to make the contracts pleaded and denied specifically that the contracts were within the scope of the authority or employment of Talbot. The answer of plaintiff to the cross petition was a general denial. The pendency of the receivership suit was also pleaded as well as the fact that there was a motion pending at that time to modify the order discharging the receiver.
With the issues thus framed the case was submitted to a jury. A verdict for defendant in the amount of $1,250 was returned. Judgment was rendered accordingly. This appeal is from that judgment.
The first error argued by plaintiff is that there was no proof of the authority of Talbot to make the contracts pleaded. This was put in issue by the pleadings. The verdict of the jury in favor of defendant, later approved by the trial court, carries with it all findings necessary to uphold that verdict, if there was any substantial evidence to support it.
The theory of the defendant and the trial court was that Talbot was held out to the world as one. having the authority of a general agent and that defendant was entitled to rely on that when dealing with him. The rule is stated in 2 C. J. 581 as follows:
“A general agent, unless he acts under a special and limited authority, impliedly has power to bind his principal by whatever is usual and proper to effect such a purpose as is the subject of his employment, and in the absence of known limitations third persons dealing with such a general agent have a right to act on the presumption that the scope and character of the business he is employed to transact measures the extent of his authority, and to hold the principal responsible for the agent’s acts within such authority. This rule applies notwithstanding the agent disregards private instructions, provided the person seeking to hold the principal responsible for the agent’s act was ignorant of such instructions.”
In the case of A. & P. Rld. Co. v. Reisner, 18 Kan. 458, a station agent placed an injured workman in a hotel and promised that the company would pay his room and board. When the company argued that the agent had exceeded his authority this court said:
“In the case of a general agency, the principal holds out the agent to the public as having unlimited authority as to all his business. When the witness testified that Hyde was the general agent of the road at Atchison, he thereby gave evidence that the railroad company held out to the public such person as its agent in all its business and employment. In other words, the general agent of the company is virtually the corporation itself.” (p. 460.)
To the same effect is the holding of this court in Banks Bros. v. Everest & Waggener, 35 Kan. 687, 12 Pac. 141. There the court held:
“Where an agent is held out to the world as one having the authority of a general agent, any private instructions or limitations not communicated to the persons dealing with such agent will not affect them nor relieve the principal from liability where the agent oversteps such limitations.” (Syl. J[ 2.)
See, also, Hyson v. Bankers Mortgage Co., 136 Kan. 259, 14 P. 2d 726; Townsend v. Railway Co., 88 Kan. 260, 128 Pac. 389.
We shall examine the evidence with this rule in mind. The undisputed evidence is that although the contract signed by defendants provided that it should not be in effect until it was approved by plaintiff, the incubators were actually installed on the property of defendants before plaintiff ever saw the contract; that is, the agent Talbot had them in his possession in Kansas City and had at least apparent authority to turn them over to any purchaser. The evidence also discloses that while the contract provided that there should be a down payment of $150 and that all payments should be made to plaintiff, this down payment was made to Talbot and plaintiff made no objection. The testimony of defendants was that when the first note became due the bank moratorium was in effect and it was extremely difficult to obtain money. The testimony was that Talbot called up from the home office and demanded payment of the note and finally consented to extend the note that was due March 1 until the next note was due upon payment of $35. This $35 was paid. No action was brought on the notes until long after this extension had expired. This was ample evidence from which the jury might have found that the extension was granted in consideration of the payment of $35.
The next extension about which there was testimony was the one that was claimed to have been made in September, 1933. Defend ants testified that Talbot agreed to extend the due date on the notes for one year on the payment of $200 and that he paid Talbot that amount. Besides the evidence already set out in this opinion we have the testimony of Mr. Petersime on this point, also some correspondence between the parties. During the early part of September, 1933, Talbot had threatened defendant with a replevin action to recover the incubators if the notes were not paid. This caused the following letter to be sent to plaintiff:
“September 20, 1933.
“Ira M. Petersime & Son, Gettysburg, Ohio.
“Gentlemen: Be: Ira M. Petersime & Son vs. Walter E. Ferguson, doing business as Ferguson Brothers Hatchery, 911 Southwest Boulevard, Kansas City, Kan.
“Mr. Ferguson has consulted me relative to a situation which has arisen over some notes due your company secured by a chattel mortgage on three No. 16 Petersime Incubators. Mr. Ferguson purchased these incubators from your company through your agent, Mr. S. J. Talbot, for the sum of $3,150, paying Mr. Talbot the sum of $150 in cash and executing eight promissory notes, four of which, in the sum of $375 each, are now past due. About the first of September this year, your representative, Mr. Talbot, called upon Mr. Ferguson and made an agreement with him whereby Mr. Talbot, acting for your company, agreed to accept the sum of $200 on account of said past-due notes and agreed to extend said past-due notes for a period of one year. Mr. Ferguson made this payment to Mr. Talbot and received his receipt signed by the company through him. During the bank holiday, Mr. Ferguson advanced to Mr. Talbot the sum of $35, which'Mr. Talbot also agreed would be applied in reduction of the notes and at which time he also agreed that the extension would be granted. All of Mr. Ferguson’s dealings have been with Mr. Talbot. Wo cannot understand now why Mr. Talbot would threaten to commence replevin proceedings for these incubators and insist upon payment of the past-due notes in direct violation of the agreements heretofore made and performed by Mr. Ferguson. This is to advise you that we insist that your company carry out the agreement made by Mr. Talbot, and that if you attempt to replevin these incubators in violation of the agreement, we shall contest your right to possession and at the same time will look to you for any damages which we may suffer. Yours very truly.”
To this letter plaintiff replied as follows:
“Mr. Joseph Cohen, Suite 711-12-13, Huron Building, Kansas City, Kan.
“Dear Sir: We have your letter in reference to the incubators at the Ferguson Brothers Hatchery. It seems by your letter you do not have the details of the matter. The brothers bought the machines and paid $150. They paid no interest at all except $35. The one brother as we learn has left the country, which of itself has violated the contract. The $200 you refer to was not paid. The interest to date would be $150, with the $35 off would be $115. If you would pay the interest and two hundred we might give you an extension, but certainly we cannot let it pass without some money. Yours very truly, Petersime Incubator Company, per Ira M. Petersime.”
It will be noted that the letter to plaintiff charged that Talbot was the agent of plaintiff and that he gave the extension as its agent. The reply of plaintiff to this letter did not deny that Talbot was agent. The only denial was that the $200 had been paid. No doubt the jury considered this feature of the letters when deciding whether Talbot actually was a general agent of plaintiff. Surely if he had not possessed authority to make the contract spoken of in the letter to plaintiff that fact would have been denied in the plaintiff’s reply. There is more evidence than has been detailed here on the question of agency, but it is not deemed necessary to set it out in this opinion.
Plaintiff next argues that there was no consideration to support the extension agreement. The record discloses that the machines were worth more than the balance due on them. Had defendant not paid the $200 he would have been relieved of all liability on the notes. Apparently something led plaintiff to believe that it was better to accept the $200 payment than to repossess them and try to sell them later. Defendant testified as follows:
“I would not have paid this $200 in cash if I had had any idea they were going to take the machines away from me the same month. I could have bought other machines to replace them with that amount as a down payment.”
Under all the circumstances we conclude there was ample consideration to support the extension agreement.
In the case of Bank v. Coerber, 113 Kan. 498, 215 Pac. 285, this court held that the implied promise of the maker of a note to continue the payment of interest until the extended date was a sufficient consideration for the promise of the payee to forbear action for the period of the extension. The court said:
“The answer, having been challenged only by a motion for judgment made after the case had been called for trial, must be interpreted liberally in favor of the pleader. So construed it sufficiently alleges not merely that the parties agreed that the note should be extended, but that an extension of time was actually accomplished by the oral agreement, the purpose of the proposed execution of new papers being merely to make the record conform to the fact. Apart from the payment of the money for the revenue stamps and recording fee, the implied promise of the maker to continue the payment of interest until the date named was a sufficient consideration for the promise of the payee to forbear action for the period covered. (Lorimer v. Fairchild, 68 Kan. 328, 75 Pac. 124; 8 C. J. 438-9.) This part of the answer therefore stated a good defense on the ground that the action was prematurely brought.” (p. 499.)
The plaintiff next argues that there was no meeting of the minds as to the extension agreement, and makes a technical argument for a limited construction to be placed on the words testified to by defendant. Under all the circumstances we have concluded that the jury was justified in finding that an extension agreement had been made. It would add nothing to this opinion to detail here the evidence on this point.
Plaintiff next argues there was no cause of action proven under the counterclaim. Appellee’s cause of action pleaded in his answer was based upon the wrongful ex parte appointment of a receiver over the business of defendant, which was obtained on the same day that the previous suit was filed, September 26, 1933, and which was obtained without hearing or notice to defendant. Plaintiff contends that defendant’s claim for damages arising out. of the wrongful appointment of the receiver is premature for the reason that the suit in which said receivership was obtained is still pending and undetermined and was so at the commencement and trial of the present action.
The fact is that the matter of the appointment of the receiver was settled in that case before this action was begun. The motion to discharge the receiver .was made on the ground that it had been obtained by means of false allegations in the petition for a receiver. The motion also pleaded that the receivership action was brought to avoid a replevin suit with its necessity for a bond. The extension agreement was also pleaded. The trial court sustained the motion to discharge the receiver generally. As far as the suit to recover money gradually in that action is • concerned, that was abandoned when the present action in replevin and for damages for the retention of the incubators was filed.
Plaintiff argues that the cross petition of defendant was not based upon a counterclaim, but that if it stated a cause of action it amounted to a setoff. R. S. 60-711 defines a counterclaim as “one existing in favor of defendant and against a plaintiff between whom a several judgment might be had in the action, and ai’ising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim or connected with the subject of the action.”
In Gardner v. Risher, 35 Kan. 93, 10 Pac. 584, this court held that a claim for unliquidated damages might be set off to defeat a suit in replevin and that if the unliquidated damages amounted to more than the sum due the plaintiff upon which it based its replevin suit that it would entirely defeat the replevin suit and that the defendant might recover a judgment against the plaintiff for the difference.
The court said:
“The law relating to setoffs in this state has been broadened to embrace claims not recognized as such by the laws of many other states.” (p. 97.)
In the case of Miller v. Thayer, 96 Kan. 278, 150 Pac. 537, this court held that in an action of replevin to recover a stock of goods under a chattel mortgage the defendant mortgagor might set up as a defense and counterclaim a cause of action which had accrued to him on account of fraud practiced on him by the mortgagee when the goods were purchased. In that case this court said:
“If for any reason the indebtedness evidenced by the note does not exist, the plaintiff is not entitled to the possession of the property in controversy under his chattel mortgage. Whatever defeats the note may be set up as a defense to defeat the plaintiff in this action.” (p. 280.)
In the case of Dalsing v. Leib, 116 Kan. 44, 225 Pac. 1074, this court said:
“The defendant may set forth .in his answer as many grounds of defense, counterclaim and setoff for relief as he may have, whether they be such as have been heretofore denominated legal and equitable, or both. (K. S. 60-710.) It would have served no useful purpose to require the defendants to file a separate action to recover damages for breach of plaintiffs’ warranty. The spirit of the code favors the settlement, in one action, of different controversies where the circumstances interpose no obstacle.” (p. 46.)
The matter pleaded in the cross petition arose out of the transaction involved in the sale of the incubators. It does not appear that the plaintiff was prejudiced by having the issues raised by his cross petition tried in the same action with the replevin action.
Plaintiff next argues that the gist of the cross petition is an action for malicious prosecution, and that since there is no evidence of malice the action must fail. The cross petition was not brought for malicious prosecution, but was for wrongfully procuring the appointment of a receiver. Defendant contended and the trial court found that the plaintiff had no just grounds for obtaining an ex parte appointment of a receiver. There was ample evidence to sustain this finding. (See 23 R. C. L. 45; McKinney v. Nayberger, 138 Ore. 203, 2 P. 2d 1111.)
Plaintiff next argues that the verdict must of necessity have included items for an attorney’s fee of $150 expended in the receivership case, for loss of accounts receivable and for loss of business. The argument is that these are not proper items of damage. The first item of which complaint is made is the attorney’s fee. Defendant was compelled to expend this amount to get the receiver, who had been wrongfully appointed, discharged. It is a reasonable fee and is a proper item of damages. The allowance of the loss in outstanding accounts is the next item of which complaint is made. The record discloses that at the time the receiver took charge the accounts receivable amounted to $400 and that since the receiver was discharged he had only been able to collect $160. Before the receiver was appointed the customers were buying goods and paying for them each month as they could. There was ample evidence that defendant was making a living at this. It can readily be seen that the appointment of a receiver would soon give the customer the idea that it was not necessary to keep his bill paid at the business of plaintiff in order to be able to buy more goods there. This is the way a small business is built up. The business was practically destroyed. The item of accounts receivable was one of the things lost by defendant when that destruction occurred. There are other errors argued in the brief of appellant, but they are not deemed of sufficient importance to discuss here.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.;
This is an original proceeding in mandamus seeking to direct the state auditor to register an issue of Wyandotte county poor-relief bonds dated March 1,1936, in the sum of $250,000. Defendant has declined to register the bonds for the reason that if issued the bonded debt of Wyandotte county would exceed the limitation prescribed by R. S. 10-301. The legal question is whether this last-mentioned section applies to the bonds the county seeks to have registered. The bonds in question have been issued under chapter 192 of the Laws of 1935, the title of which reads:
“An Act relating to the public relief and assistance to the poor and unemployed; authorizing the levying of taxes and the issuance of bonds by the counties for the relief of the poor and unemployed, imposing certain conditions and restrictions, and providing certain procedure.”
The first section of the act authorizes a board of county commissioners, under certain circumstances, to levy an additional tax for the relief of the poor, but since no tax question is raised here we need not further notice this section. The pertinent portion of the second section of the act reads;
“That if at any time prior to March 1, 1937, it appears to the. board of county commissioners that additional revenue will be needed for the relief of the poor and destitute, the board of county commissioners shall have the power to issue bonds to provide funds for the relief of the poor and destitute in amounts for each year as follows: An amount in 1935 not exceeding one third of one percent, in 1936 an amount not exceeding one half of one percent, in 1937 an amount not exceeding one tenth of one percent, of the assessed valuation of the county in the previous year: Provided, That the proposal to issue bonds shall have been submitted to the state tax commission and by the state tax commission approved. . . . The money derived from the sale of such bonds shall be used only for the purposes as stated in section 3 of this act. The revenue derived from the sale of bonds in this act may be in addition to any amount provided for in the budget of the county. . . .”
The third section provides that moneys raised by the tax levy or a bond issue, provided for in the act, shall be kept in a separate fund to be known as “public assistance fund,” and shall be used for the relief of the poor.
It is conceded that the proposal to issue the bonds was submitted to the state tax commission and by it considered and approved; also that all other steps necessary to be taken under the act have been performed, and that the amount of the issue is within the limitations provided by the act under which the bonds are issued. The sole question presented is whether bonds issued under the act arc to be counted or taken into consideration in determining the amount of bonds which may be issued by a county within the limitations prescribed by R. S. 10-301, which reads:
“Except for the refunding of outstanding debt, including outstanding bonds and matured coupons thereof, or judgment thereon, no bonds of any class or description shall hereafter be issued by any county, township, city, board of education or school district where the total bonded indebtedness of such county or township would thereby exceed one percent of the assessment for taxation, as shown by the last finding and determination by the proper board of equalization, or where the total bonded indebtedness of such city, school district or board of education would thereby exceed one and one fifth percent of such assessment; but this restriction shall not apply to cities of the first class.”
This statute was last revised and reenacted in 1909 (Laws 1909, ch. 62, sec. 2.) In Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009, it was held to have been superseded and repealed by R. S. 10-303 insofar as applied to bonds issued by cities of the second and third class. In Board of Education v.. Turner, Auditor, 116 Kan. 735, 229 Pac. 74, it was held to have been superseded and repealed by R. S. 72-1820 to the extent of the repugnancy in the two acts,- and in Woodson v. School District, 127 Kan. 651, 657, 274 Pac. 728, it was held to have been superseded by R. S. 72-2001, so far as it pertains to the limitation for bonded indebtedness of a common-school district. So, at best, R. S. 10-301 is but partly effective. These decisions recognize and apply the rule that the latest legislation is controlling, insofar as it relates to the same subject.
Notwithstanding the broad language of R. S. 10-301 there is ground for saying that the legislature never intended it to apply to poor-relief bonds issued by a county. We are told that at the time of the enactment of that statute there had been no statute enacted in this state authorizing a county to issue poor-relief bonds; indeed, that there was no such statute until 1933. There is room for the argument that the legislature, in enacting it, had in mind only the kinds and classes of bonds then known to our law, and that it could not be said to have intended the statute to-apply to a kind or class of bonds then unknown. In addition to what may be said to be the common understanding relating to legislative intent, as shown by statutory enactment, there is some authority for this view. In State v. Kansas City, 83 Kan. 431, 111 Pac. 493, speaking of section 6 of chapter 62 of the Laws of 1909, the court said:
“Obviously the legislature had no intention of applying the limitation to any class of bonds that had previously been exempt from its operation.” (p. 433.) (Citing authorities.)
Prior to 1933 the expenses -of the poor relief in a county were paid by moneys derived from taxation. If that were insufficient, warrants were issued, later paid by moneys raised by taxation, or by bonds authorized to be issued to fund outstanding obligations of a county. In 1933 the legislature, by a series of acts, undertook to put the financial affairs of counties and other subdivisions of the state on a better financial basis. It enacted the ‘.‘cash-basis law” (Laws 1933, ch. 319), by which such governmental units were required to balance their respective accounts and prohibited from overdrawing them, and a new “budget act” (Laws 1933, ch. 316), requiring all anticipated expenditures to be classified in advance and means of payment prescribed. Realizing these statutes might handicap a county in the relief of the poor, the number of which had increased greatly by reason of severe general financial depression, the legislature authorized poor-relief bonds to be issued under certain circumstances (Laws 1933, ch. 193), and at the special session of the legislature later in that year another act for that purpose was passed (Laws 1933, Special Session, ch. 67). Both of these acts for the issuing of poor-relief bonds were limited in time, the latest one expiring in January, 1935. The legislature of 1935, following up this plan, enacted the statute under which the bonds in this- case were issued (Laws 1935, ch. 192). Collectively these three statutes authorize the issuance of poor-relief bonds amounting in the aggregate to 1% percent of the assessed value of the property in a county. In enacting these statutes the legislature did a futile thing if the limitation of bonded indebtedness prescribed by R. S. 10-301 is to apply to such bonds. In enacting these statutes the legislature was prescribing laws making it possible for the several counties of the state to perform the duties imposed upon- them by our constitution (art. 7, § 4), which reads:
“The respective counties of the state shall provide, as may be prescribed by law, for those inhabitants, who, by reason of age, infirmity, or other misfortune, may have claims upon the sympathy and aid of society.”
The statute under consideration (Laws 1935, ch. 192) contains its own limitation as to the amount of bonds which may be issued under it in any county. Its title says it imposes “conditions and. restrictions,” and the act clearly does so. That fact itself indicates the legislature did not consider the bonds as being governed by any prior general statute of limitation as to the amount of bonds a county may issue. The issue of bonds in question is within the limitations provided in that act. The act further provides the bonds issued may be in addition to any amount provided for in the county’s budget. The act of 1933 (Laws 1933, ch. 193) contained a similar provision. The later act of 1933 (Laws 1933, Special Session, ch. 67) contained a similar provision; and, also, contained this language: “Such bonds may be issued in excess of any bonded debt limit provided by statute.” This exact language is not found in the 1933 act (Laws 1933, ch. 193), nor in the 1935 act (Laws 1935, ch. 192). The absence of this exact language from the latter statute forms the principal basis for the argument on behalf of defendant in this proceeding.
Defendant argues that upon a revision or reenactment of a statute a change -of wording such as the omission in the later statute of a provision contained in the early one indicates a change of legislative purpose, citing Hauserman v. Clay County, 89 Kan. 555, 559, 132 Pac. 212; City of Topeka v. Wasson, 101 Kan. 824, 168 Pac. 902; Ritchie v. Ahlstedt, 105 Kan. 739, 186 Pac. 131; Schmeling v. F. W. Woolworth Co., 137 Kan. 573, 21 P. 2d 337; and cases of similar import from other jurisdictions. It is pointed out that the three statutes last above mentioned had the same general purpose, namely, the raising of money by taxation or by bond issue for the relief of the poor, and that the language, “Such bonds may be issued in excess of any bonded debt limit provided by statute,” contained in chapter 67 of the Laws of 1933, Special Session, being omitted from chapter 192 of the Laws of 1935, indicates a clear legislative purpose to have the amount of the bonds authorized by the later act limited by any prior applicable limitation statute such as R. S. 10-301. It is sufficient answer to this argument to say that while it would have been prudent to use that specific language in the 1935 act, for the use of it would have made this lawsuit unnecessary, the use of that exact language was not essential to show a legislative purpose not to have the bonds issued under the act limited by R. S. 10-301. Certainly other language might be used to show the amount of the bonds was not intended to be so limited. The provisions of the act indicating they were not to be limited by R. S. 10-301 may be summarized as follows: (1) They were bonds “for the relief of the poor,” being a purpose for the issuing of bonds by a county unknown in our legislative history at the time of the enactment of R. S. 10-301, and hence can hardly be thought of as having been intended to be included in the restrictions provided by that act. (2) The title to the act (Laws 1935, ch. 192) discloses a legislative purpose of providing therein its own “conditions and restrictions,” as well as providing a “certain procedure” for the issuance of such bonds. (3) The act contains specific restrictions upon the amount of bonds to be issued under it, and not only the total amount, but the amount that may be issued in any one of three specified years. (4) The amount of bonds authorized to be issued by this act and the two acts of 1933, authorizing bonds for the same general purpose, in the aggregate exceeds the limitation provided by R. S. 10-301,' irrespective of any other bonded indebtedness of a county. (5) The procedure provided the restraining influence of the approval of the state tax commission. This itself not •only is unusual in a statute providing for the issuance of bonds, but is exceptionally appropriate with respect to bonds for the relief of the poor. (6) The bonds issued under the act may be in addition “to any amount provided for in the budget of the county.” Now the budget of the county details anticipated expenditures (Laws 1933, ch. 316) for each individual fund, and prohibits the creation of any indebtedness not provided for in such budget. (7) Our constitution requires counties to furnish certain relief to the poor, as provided by law, and thereby imposes a duty upon the legislature to enact statutes enabling the county to perform that duty. The act in question indicates the legislature was intending to provide a law by which the county could do that. Perhaps other points might be suggested, but we deem these sufficient to show conclusively that the bonds issued under the act were not to be limited in amount by R. S. 10-301. If R. S. 10-301 ever applied to poor-relief bonds it is superseded by chapter 192 of the Laws of 1935 as to the bonds in question.
It is the judgment of the court that defendant should register the bonds in question. It is ordered that the writ issue.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action to recover on four written obligations for the aggregate sum of $750 and interest. Typical of each, except as to amounts and dates, was the following:
$500 No. A 2070
“6% Gold Certificate
Arthur Capper, Publisher
Topeka, Kansas
“This certifies that Arthur Capper has received the sum of five hundred dollars from Henry Saunders, which amount is accepted by Arthur Capper, proprietor of the Capper publications, Topeka, Kansas, as a loan to him and shall bear interest at the rate of six percent per annum, payable semiannually, from the date of issue shown hereon.
“The lender has the privilege of withdrawing the amount of this certificate and accrued interest, upon giving said Arthur Capper thirty days’ notice.
“Arthur Capper has the privilege of taking up this certificate at any interest-paying date by giving thirty days’ notice to the lender. Interest shall cease after the expiration of the thirty-day notice. Said notice shall be sent to the last known address of the lender by registered mail — registry receipt of postmaster at Topeka shall be accepted as full proof thereof.
“Issued Sept. 24, 1931.
“Not good unless countersigned by E. C. Nash. Arthur Capper.”
The pertinent facts developed by the pleadings and by stipulation of counsel were these:
Defendant sold the instrument set out above to one Henry Saunders, of Eugene, Ore. He also sold two similar instruments for $100 each and one for $50 to the same purchaser.
On and about December 9, 1931, Saunders was an inmate in the Pacific Christian Hospital, at Eugene, Ore. He was suffering greatly from cancer and was contemplating suicide. On that date he wrote the following noté and placed it, together with the four instruments-, in an envelope addressed to the hospital. It reads:
“¡Eugene, Dec. 9, 1931.
“Dear Friends: I leave this money in your hands for the hospital patients; they need it badly, poor suffering people in the hospital ward; some can’t pay for treatment. <¡Hbnry SaunmbS;
“Eugene, Route 2, Box 368.
“I have a son in Toronto City, Ontario, Canada. His name is W. N. Saunders.
“I must die; my agony is so terrible; I must die at once; stomach.
“My brother lives on motor route, Eugene, Ore.”
On December 11, 1931, at 9 a. m. Saunders died, either of a self-inflicted wound or of his fatal malady. The stipulation of agreed facts states that Saunders mailed the envelope with its contents to the hospital “immediately prior to his committing suicide.” The postmark shows the mailing date and time, “Dec. 11, 1931,11 a. m.” The hospital authorities came into possession of the Capper instruments, but their value was not appreciated, and eventually they passed into the possession of plaintiff as receiver of the hospital corporation, along with other documents of no particular value.
Ten days after the death of Henry Saunders his brother, George F. Saunders, was appointed administrator of his estate. About five months later, on May 3, 1932, the administrator addressed a letter to the defendant, Arthur Capper, telling of Henry’s death and that he was serving as administrator. The letter continued—
“My brother had certificates of the Capper Co. to the amount of $700 and I am unable to find the certificates, though I have made careful search. I wish to cash these certificates, and if you will send me the necessary bond I will have it executed and return to you, so that you can send me the money.”
A bond was prepared and executed. It recited that the original instruments had been lost, that the administrator had applied for duplicates, and that he and his sureties bound themselves in the sum of $1,500 to hold Capper harmless of all loss and damage if the duplicates applied for were issued.
Promptly on receipt of this bond, duplicates of the original instruments were issued by Capper, and on June 20, 1932, they were redeemed at face value plus interest, $760.40.
About a year later the original certificates became a matter of correspondence between representatives of the hospital or its receiver and Capper; and eventually this lawsuit was instituted by the receiver to recover on them.
Plaintiff’s petition alleged the pertinent facts, including the circumstances under which the instruments were delivered by the late Henry Saunders to the hospital.
Defendant’s answer admitted his execution and sale of the instruments to Henry Saunders and the death of the latter, the appointment of the administrator, and the representation of the latter to defendant that Henry had died seized of the four instruments described, that they had been lost and could not be surrendered for payment; and—
“Defendant further states that on the 20th day of-June, 1932, in accordance with the demand of the said George F. Saunders, as administrator, this defendant paid to said administrator the principal sum of $750 in full payment of the face value of said certificates 'A, B, C, and D’ together with the sum of $10.40, the earned and unpaid interest due on said certificates to June 20, 1932. That the said administrator at that time was the lawful officer in charge of the estate of Henry Saunders, deceased.”
Defendant further answered that the first intimation he received touching plaintiff’s claim was on June 19, 1933, a year after duplicates of the originals had been issued and redeemed by payment in full.
Answering further, defendant alleged that the instruments were nonnegotiable; and that plaintiff paid nothing for them; and that defendant was not indebted to plaintiff in any sum thereon.
A jury was waived; the cause was argued on the ple'adings and pertinent law; and the trial court gave judgment for defendant.
Plaintiff appeals. His counsel simply contend that under the pleadings and agreed facts his ownership of the instruments was indisputable, and no sufficient excuse for defendant’s refusal to pay them is shown by the record. This argument is supplemented by consideration of the fact that defendant holds the bond of the administrator and sureties to protect him from loss and damage.
To this line of argument, counsel for the appellee reply, first, that there was no legal transfer of the instruments by Henry Saunders in his lifetime. According to our interpretation of the stipulation of counsel, however, that interesting question of fact went out of the case. That stipulation recites that Henry Saunders wrote the letter, placed it and the instruments in an envelope addressed to the Pacific Christian Hospital, and “mailed the same immediately prior to his committing suicide” and that the envelope was “either in the possession of the post-office department or of the hospital at the time of the death of Henry Saunders and not in his control.”
It is settled law that when a letter is mailed it is in legal effect delivered to the addressee, particularly where the fact that it was received is not denied by the latter. (Shriver v. National Bank et al., 117 Kan. 638, 232 Pac. 1062; Ennis-Baynard Petroleum Co. v. Plainville Mill and Elevator Co., 118 Kan. 202, 235 Pac. 119; Brandon v. Dawson, 51 Mo. App. 237.) See, also, American Surety Co. v. Blake, 54 Idaho 1, 27 P. 2d 972, 91 A. L. R. 153 et seq.
Since there was a sufficient delivery prior to the death of the donor the rule of law pertaining to gifts inter vivos was satisfied (Stevenson v. Hunter, 131 Kan. 750, 754, 755, 293 Pac. 500), and the legal proposition touching the revocation of an agent’s authority when the authorized act is not completed before the death of the principal does not arise in this case. The fact that Saunders was dead two hours before the envelope containing the instruments was postmarked does not prove that the envelope and its contents were not in the possession of the government mail service until that exact time.
Another point urged by appellee is that the letter of Henry Saunders, written two days before his death, reveals that he was not in mental or physical condition to handle his affairs rationally. An examination of the pleadings and the stipulated facts does not show that this point was fairly raised in the trial court. Conse quently it cannot be considered in this appeal. (Clark v. Lindley Motor Co., 126 Kan. 419, 268 Pac. 860; Lindberg v. Pence View Farming Co., 140 Kan. 138, 144-146, 33 P. 2d 1102.)
Another point urged by the appellee to sustain the judgment is based on the doctrine of estoppel. He summarizes the facts on which such estoppel might rest — the receiver had the Capper instruments in his possession, he knew an administrator had been appointed for Saunders’ estate and that under the local law all claims against that estate had to be presented within six months; his failure to assert ownership and his long continued silence, which induced defendant to believe that he might safely pay the lawful administrator, and the administrator’s collection and disbursement of the proceeds in accordance with the pertinent law of Oregon. There is a rule of law that while silence alone will not raise an estoppel, such silence may sometimes operate as an estoppel where there is a duty to speak and an opportunity to speak. (21 C. J. 1150 et seq.) But it was not shown in this case that the hospital corporation or its receiver had any claim against the estate of Saunders which would require either of them to pay attention to the administration of the Saunders estate; and this court holds that the rule of estoppel should not be applied here to bar plaintiff’s cause of action.
Yet another point suggested is that since the instruments were nonnegotiable and Capper had no notice of any change of ownership, he had a right to pay the personal representative of Saunders, the administrator. But the nonnegotiability of the instruments did not prevent their being the subject matter of a gift to the hospital. Nonnegotiability would permit defenses which the maker might wish to raise against them, but there were n;o such defenses. Saunders no longer owned them after they were delivered by mailing to the hospital; and the administrator only obtained legal title to the personal property which Saunders did own at his death — not personalty which he had given away two hours, or two days, or at any time, prior to his death.
The last point urged in support of the judgment is laches. A majority of this court decline to admit that laches existed in this case. The instruments had no fixed time of payment. Only on thirty days’ notice could the holder require payment to be made. The lapse of one year, eight months, twenty-five days between the date of issue and the date plaintiff opened correspondence with defendant looking to their payment, considered alone, would not sup port a plea of laches. (Harris v. Defenbaugh, 82 Kan. 765, 109 Pac. 681.) Nor do we think the fact that in the interim defendant issued duplicates to the administrator and then redeemed them, and that the estate was settled prior to the time plaintiff asserted his claim of right as owner of the original instruments, can be recognized as sufficient to support a plea of laches.
It follows that the judgment must be reversed and the cause remanded with instructions to enter judgment in favor of plaintiff. It is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
Defendants have filed a petition for rehearing. The state has filed its answer thereto, and has requested modification of a portion of the opinion dealing with the effect of a contract referred to in the course of the opinion.
All matters raised by defendants’ petition for rehearing which were presented on the appeal have been previously considered and determined. The petition for rehearing is denied.
Touching the request of the state for modification of our opinion, the effect of the contract is not specifically before us for present adjudication; but our opinion should not be construed to mean that if the county commissioners made a contract for the payment of an amount which was in fact a violation of R. S. 19-242, such alleged contract could be a defense to the charge alleged in the indictment.
The motions for rehearing and for modification are denied.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover on an appeal bond given in a criminal action. Judgment was rendered in favor of the plaintiff against Annie Evans as administratrix of the estate of W. H. Evans, deceased, and she appeals.
C. E. Gilmore was convicted in the district court of Greenwood county on two counts of an information charging him with separate violations of the prohibitory liquor law. He was fined $100 and sentenced to thirty days in jail on the first count, and fined $400 and sentenced to j ail for a period of sixty days on the second count. He appealed from that judgment to the supreme court. The only order of the court fixing the' amount of the appeal bond was shown on the trial docket. It contained the following recital: “Appeal bond fixed at $1,000 and $300.” The $1,000 bond was given; the $300 bond was not given. The $1,000 bond with signatures thereto and the approval thereof was as follows:
“Amount $1,000.
“We, C. E. Gilmore, as principal and F. P. Doerr and Sam Trout as surety, jointly and severally acknowledge ourselves to owe and be indebted to the state of Kansas in the sum of one thousand and no one-hundreds ($1,000) dollars if default be made in the following conditions:
“The condition of this bond is such that if the said C. E. Gilmore appears in the supreme court of the state of Kansas by his attorneys on the first day of the next term thereof and remains in attendance thereon from day to day and term to term as his appeal from a conviction of a violation of the prohibitive law shall remain undisposed of and not depart without leave and abide by the judgment of the supreme court in the premises; and further conditioned that the defendant shall within thirty days after the affirmance of the judgment by the supreme court or the final disposition of the case in any way, other than a reversal of the judgment, pay the fine and costs assessed, then this bond to be void; otherwise, t'o remain in full force and effect.
“Witness our hands this-day of-, 1922. C. E. Gilmore.
F. P. Doerr.
Sam Trout.
W. H. Evans.
“O. K. as to form. Joseph A. Fuller, County Attorney.
“Approved this 12th day of October, 1922. — Richard Crebo, Je., Clerk of the District Court. A. T. Ayres, Judge.”
1. The appellant argues that W. H. Evans was not liable on the bond because “Gilmore was intentionally released from custody of the officers without having furnished all the bonds required by the statutes and by the order of the court to entitle him to his release, and without any stay order being made by the court, and therefore the bond sued on never became effective and was discharged.”
Section 62-1705 of the Revised Statutes reads:
“Any person convicted bf a misdemeanor, in the district court, may appeal to the supreme court, by complying with the laws now in force, and giving bonds as follows: (1) A bond in double the fine and costs, conditional upon the payment of such fine and costs within thirty days after the affirmance of ithe judgment by the supreme court, or the final disposition of the case, in any way, other than a reversal of the judgment. (2) A bond, in an amount to be fixed by the trial judge, that, pending the appeal, the defendant will not violate the law under which the conviction was had. These bonds shall run to the state, and shall be approved by the clerk of the district court, after a personal examination of the sureties, under oath, as to their financial responsibility.”
Section 62-1710 of the Revised Statutes must be examined; that statute reads:
“In an appeal to the supreme court from a judgment of conviction the execution of the judgment or sentence shall be stayed by the order of the court trying the case or the judge thereof or by order of the supreme court or any justice thereof after the service of a lawful notice of appeal and upon the appellant giving bond in such sum as the court; justice or judge making the order shall prescribe, said bond to be approved by said trial court, or the judge thereof or the supreme court or any justice thereof.”
There is another section that must be examined, section 62-1226 of the Revised Statutes, which reads:
“No action upon a recognizance shall be defeated, nor shall judgment thereon be arrested, on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the clerk or magistrate to note or record the default of any principal or surety at the term or time when such default shall happen, or of any other irregularity, so that it be made to appear that the defendant was legally in custody charged with a public offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate for examination or trial for such offense.”
In McLaughlin v. State, 10 Kan. 581, this court said:
“In a criminal recognizance it is unnecessary to recite the steps in the prosecution which give the officer authority to require the recognizance. All that the recognizance need contain is the penalty and the condition.” (Syl.)
A case nearer to the present one is State v. Price, 88 Kan. 724, 129 Pac. 940, where this court said:
“By the provisions of the statute, a defendant, who has been convicted of a felony and appeals to the supreme court from such conviction, may be granted a stay of the sentence pending the preparation and hearing of the case on appeal upon a sufficient undertaking, given by others and not himself, upon the approval thereof by the proper officer of the state.” (Syl. If 1.)
“Moreover, the provisions of section 154 of the criminal code fairly preclude the defenses pleaded to the action in this case. The signers of the bond are presumed to know the law, and when they individually signed the bond and delivered it to another to be delivered to the officer for acceptance, even if they had expected or had even agreed that the bond should not be valid until signed by others, if such bond came to the possession of an officer authorized to approve and accept it, and a defendant legally in custody, charged with a public offense, was discharged from custody by reason of the giving of the recognizance by which they undertook that the defendant should appear before a court or magistrate for examination or trial for such offense, they cannot be heard to dispute their obligation.” (p. 728.)
C. E. Gilmore gave the bond in question for the purpose of securing a stay of execution and his release from custody while his appeal was pending in the supreme court. Under that bond, execution was stayed, and he was released from custody. His failure to give all of the bonds prescribed by section 62-1705 resulted in his benefit. Those who signed the bond should not be heard to question its validity because the purpose for which the bond was given was accomplished when execution was stayed and when Gilmore was released .from the custody of the officers. His appeal was dismissed, but C. E. Gilmore could not be found by the sheriff. The terms of the bond were violated. The bondsmen were bound by its terms although no other bond was given.
2. The appellant argues that the estate of W. H. Evans is not liable on the bond because his name did not appear in the body thereof. His name appears to have been signed on the bond after the signatures of those whose names had been recited in it. He cites Adams et al. v. Wilson, 10 Mo. 341, which supports his contention; but, the supreme court of Missouri overruled that case in Keeton et al. v. Spradling et al., 13 Mo. 321, and in Johnson & Cain v. Steamboat Lehigh, 13 Mo. 539. What was the purpose of W. H. Evans in signing the bond? There is only one answer to that question. That answer is that he intended to make himself liable on the bond for its faithful performance. If he did not intend so to do he should not have signed it. When he signed it he became a party to it and was bound by it in the same manner and to the same extent as if his name had been recited in it as one of the obligators.
In 9 C. J. 11 it is said:
“The fact that an obligor’s name is not recited in the body of the bond, or is incorrectly recited therein, does not affect the validity of the bond or his liability thereunder, if the bond is otherwise properly executed and signed by him.”
Cases are there cited as supporting what is said in the text from more than twenty states in the Union and from the United States supreme court and from England.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one by Charles Nelson against Glen Lewis, Charley Carson and Walter Hoover for damages for conversion of a span of mules belonging to plaintiff. Lewis and Carson demurred to plaintiff’s evidence. The demurrers were sustained, and plaintiff appeals.
One of the mules was mortgaged. Plaintiff needed money to pay the mortgage, and desired to sell the span. On Friday, January 19, 1934, R. E. Childers, a mule buyer who lived in Chanute, went to plaintiff’s farm, southwest of Fredonia, and talked with plaintiff about buying the mules. Childers was a stranger to plaintiff. Price was discussed, and Childers’ offer of $240 was accepted. Plaintiff said he had to have the money. Childers said he had the money in the First National Bank of Chanute and would give plaintiff a check. Childers wrote a check for the price of the mules, and plaintiff accepted the check. Childers said he wanted the mules immediately, and would send a truck for them. Then Childers went away. Plaintiff was plowing with the mules at the time. He unhitched them, and soon afterward Roy Criswell, who was engaged in the trucking business, came for the mules. Criswell was employed by Childers. Criswell asked plaintiff who the buyer was and plaintiff looked at the check to get the name. Plaintiff helped Criswell load the mules in Criswell’s truck and Criswell took them away. Criswell took the mules to a sale barn in Fredonia. Childers was waiting at the barn for Criswell and reemployed Criswell to take the mules to Yates Center. At Yates Center, Criswell unloaded the mules at the stockyards. Defendant Glen Lewis purchased the mules of Childers for $230, shipped them by truck from Yates Center to Kansas City, Mo., and sold them for $250.
Walter Hoover accompanied Childers to plaintiff’s farm and was present when Childers gave his check to plaintiff. Childers misrepresented his place of residence, misrepresented his business, and misrepresented the purpose for which he was buying the mules. Hoover corroborated Childers’ statements and told plaintiff Childers was all right. This assurance induced plaintiff to accept the check and to deliver the mules.
The next day plaintiff deposited the check in the Citizens Bank of Fredonia. When the check was presented to the First National Bank of Chanute for payment, payment was refused, and in due time the check was returned to the Citizens Bank of Fredonia, marked “No Funds.” Childers 'absconded, and a warrant issued for his arrest in a prosecution under the bad-check law has not been served.
The action against Lewis for conversion is predicated on the proposition that because of Childers’ fraud in obtaining the mules, title did not pass from Nelson to Childers. Such is not the law.
In the bargaining between Nelson and Childers, Nelson wanted $250 for the mules. He consented.to take $240. Nelson said he wanted money. He consented to take Childers’ check. Nelson delivered the mules unconditionally to Childers. The intention on one side was to sell, and on the other side to buy, and there can be no dispute that a sale to Childers was consummated.
The law is stated in 2 Williston on Sales (2d ed.), section 625a:
“It is important to observe whether the fraudulent person, induces the defrauded person to assent to a transfer of title or merely to assent to a transfer of possession. In the latter case the fraudulent person can transfer no better title even to a bona fide purchaser for value without notice than any possessor of goods without title.”
In support of this text the author quotes in a footnote from the opinion in Levy v. Cooke, 143 Pa. St. 607, 614, as follows:
“If the owner intended to transfer the property in the goods, as well as their possession, the transaction is a sale, and the property passes, however fraudulent the device may have been; but if he intended to part with nothing more than the bare possession, there is no sale and no property passes. In the former case the contract is not void ab initio, but voidable at the election of the vendor. Such voidable contracts may be affirmed and enforced, or they may be rescinded by the vendor at his election; but in the meantime, and until he does elect, if his vendee transfers the goods, in whole or in part, to an innocent third person for a valuable consideration, the right of the original vendor will be subordinate to that of such innocent third person.”
Plaintiff cites no textbook, and cites no decision outside this state, to support his proposition, and relies solely on certain decisions of this court as warranting recovery. None of them does so.
In the case of Motor Co. v. Insurance Co., 111 Kan. 225, 207 Pac. 205, a swindler carried papers which indicated he was Ben Cole. He gave a check signed “Ben Cole” on Ben Cole’s bank to pay for an automobile. On inquiry, the bank reported Ben Cole’s account was good for the amount of the check. The check was accepted by the motor company, the automobile was delivered, and the swindler vanished. The action was on an insurance policy, insuring against theft. No innocent purchaser from the swindler was involved. For the purpose of the decision it was held the swindler obtained possession of the automobile by a species of theft. This was true, even though the motor company intended to part with title and possession. The decision was approved in the case of Tripp v. United States Fire Ins. Co., 141 Kan. 897, 44 P. 2d 236, but in that case the swindler did not so much as obtain possession of an automobile. He obtained custody only.
In the case of Leslie v. Milling Co., 109 Kan. 146, 197 Pac. 1094, Gibson wrongfully took wheat from Leslie’s granary and sold it to the milling company. Leslie voluntarily parted with neither title nor possession. In fact, the wheat was stolen. Gibson could transfer neither title nor right of possession to the milling company.
In the case of Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 120 Kan. 21, 245 Pac. 734, a shipper delivered wheat to the railroad company for transportation pursuant to a shipper’s order bill of lading. The railroad company delivered the wheat without presentation of the bill of lading, and the wheat passed through several hands, finally reaching a milling company. The railroad company was a bailee only, and could not vest title or right of possession in anybody by wrongful delivery. In the same case, on rehearing, Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 121 Kan. 10, 245 Pac. 734, it was held the fact that the milling company was an innocent purchaser for value was immaterial. In the opinion it was said:
“It is well settled that one who obtains the possession of property without the consent of the owner, or who buys it from a party who has no ownership or right to sell or dispose of it and thereafter asserts dominion, over it or appropriates it to his own use, is liable for conversion, although he acted in good faith in the belief that the seller or party from whom he obtained possession owned the property and had the right to dispose of it.” (p. 11.)
In a reply brief, plaintiff attempts to shift from his position that title did not pass, and contends Lewis was not an innocent purchaser for value. Lewis paid practically full value for the mules, and there was no substantial evidence that he had knowledge of any fact putting him on inquiry respecting the source of Childers’ title.
Carson had nothing to do with the original sale or with subsequent disposition of the mules.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for the wrongful death of the son of plaintiff. The verdict of the jury was in favor of plaintiff and assessed her damages at $300. The defendant filed a demurrer to the evidence of plaintiff, also a motion for judgment on the answers to special questions notwithstanding the general verdict. Plaintiff filed a motion for a new trial. The trial court overruled the demurrer to the evidence, denied the motion for judgment on the special questions, sustained the motion of plaintiff for a new trial and on its own motion set aside the answers to the special questions. The defendant appeals from the order overruling the demurrer to the evidence and from the orders overruling the motion for judgment notwithstanding the general verdict and granting plaintiff a new trial.
This case has been in this court before. See Turner v. City of Wichita, 139 Kan. 775, 33 P. 2d 335. In that case a judgment in favor of plaintiff was reversed and a new trial was ordered on the ground of newly discovered evidence.
During a windstorm the son of the plaintiff was struck by a branch blown from a tree standing in the parking. He was killed instantly. The branch broke off from the top of a tree and blew a distance of about 44 feet from the base of the tree before it struck deceased.
When the case was here before this court laid down the rule as to liability of a city in case of branches falling from trees, as follows:
“A city is liable in damages to a person injured by a falling branch or limb of a tree only when the city has notice of the defective condition of the tree, and the branch or limb falls on account of its decayed or rotted condition or is thrown down as the result of usual and ordinary winds.” (Syl. ¶ 1.)
Defendant argues that the evidence is undisputed that the wind on the night in question was an unusual wind.
Another rule laid down in the case is as follows:
“In case a high and more or less unusual wind is blowing, and it need not be a tornado, nor even of unprecedented velocity, and it is obvious to a person of ordinary intelligence traveling upon the street that limbs and branches, either decayed, rotted or living, from trees standing in the highway, may be thrown down, there is no libability, unless the condition of the tree or the limbs or branches thereof is so patently bad and has existed for such length of time that permitting them to remain is equivalent to an utter disregard of the safety of the traveler in the street.” (Syl. ¶ 1.)
Defendant argues that the undisputed evidence of plaintiff does not sustain the burden put on plaintiff by either one of the above rules. Basing its arguments on this contention defendant urges that the demurrer to the evidence of plaintiff should have been sustained.
This argument will require a careful consideration of the evidence.
O. A. Smith heard a crash, saw deceased on the ground. The yard was strewn with limbs. In his opinion, the top of the tree was dead for about three weeks before the accident. There was no change in the tree at any time in these three weeks. The wind broke off the limb, but it looked like good dead wood.
Paul Philpott saw deceased just before he was killed. At the time deceased was holding his hat on his head. It took both hands. In his opinion it was about 30 feet from the base of the tree to where deceased was standing. This was the strongest wind he had ever seen in Kansas. While the wind was at its height the limb cracked off and broke in two pieces. One piece blew across and struck deceased on the head.
F. W. Hall testified that he was a real-estate man. He saw the tree a few days before the accident. It looked at the top as if it were rotten and liable to come out by a puff of wind. He talked to the director of parks about it and asked for the tree for wood. He further testified that a picture taken May 1, 1933, which was in court, looked like the tree was alive, being in leaf. He saw a piece of the limb in court and would call it rotten wood. However, if a tree was in leaf he would not call it rotten. He could not break off any of the rotten wood with his hands but he could with an ax.
This is all of the evidence of plaintiff offered in her case in chief. Since the demurrer to the evidence was overruled, if the testimony of defendant cured any defect of the case of plaintiff she should have the benefit of it when considering a demurrer at this stage of the case.
The evidence offered by defendant will be considered.
R. M. McGaffin testified that he was forestry foreman. The tree was 35 feet high where the limb was broken off. It was 44 feet from the base of the tree to where deceased was struck. At the top of the tree where the piece broke off there was sap in the tree. Part was dead and part had sap in it. Numerous other trees were blown down during the storm. One maple, 16 inches in diameter, was blown down. One live cottonwood, 3% feet in diameter, was twisted so badly it had to be taken down. The balance of his testimony was as to the velocity of winds and was not helpful to plaintiff.
E. J. Merritt testified as to the velocity of the wind and his testimony was not helpful to plaintiff.
Raymond Edwards, Ralph Martin and J. W. Rule testified as to trimming trees and the testimony was not of any help to plaintiff.
William Eaton testified as to the velocity of the wind and did not help plaintiff’s case.
Frank Garrison testified as to trimming the tree in question the next spring after the accident.
Alfred MacDonald testified that he was director of parks and forestry of the city of Wichita. His testimony was of a general nature and did not help plaintiff’s case.
In rebuttal plaintiff offered the testimony of the government meteorologist for Wichita. He testified that at 8 o’clock in the evening of the day in question the wind blew at 15 miles per hour. Between 8 and 9 it had increased to 17 miles an hour. Between 9 and 10 it had shifted to the south and increased to 21 miles an hour. During January, 1932, the wind reached a velocity of 22 to 31 miles per hour. Nine times in April it reached that velocity, 12 times in August, 6 times in September and 9 times in October. A wind of 25 miles per hour in Kansas is not very uncommon. Where winds are gusting and twisting their velocity might vary greatly. It was possible to have a much stronger wind a block or two away from his register than was shown by his register. The weather bureau records were about 5 blocks from the scene of the accident. There was no obstruction from any direction where his instruments were.
We have seen the two rules under which a city is liable in damages to persons injured by a falling branch or limb of a tree. If the plaintiff bases his case on the first rule he must first prove notice of the defective condition of the limb. Plaintiff argues that she did this by the testimony of the real-estate agent. He testified that the tree looked at the top as if it were rotten and liable to come out by a puff of wind. He talked to the director of parks about it. Perhaps the rule with reference to consideration of the evidence offered by plaintiff that it must be taken as true and every inference drawn therefrom favorable to plaintiff makes it incumbent to take at its face value the testimony of this real-estate agent who apparently could tell so much about the top of a tree 35 feet in the air. We will take this as notice of the defective condition of the tree.
The plaintiff would also be confronted with the burden of proving that the wind was a usual or ordinary one. This burden was not sustained. There was evidence that the ground was covered with broken limbs. The deceased was holding his hat on with both hands just before he was struck. One witness feared that the wind would blow over the pumps at the filling station. The limb blew a distance of 44 feet from the base of the tree before it struck deceased. The testimony of the meteorologist did not help this. It is true that the instruments registered a wind velocity of only 17 miles per hour at about the time of the accident. This would be no proof however of what the velocity was a few blocks from the register. The pranks of windstorms are too well known for us to hold that.
We hold that liability was not established under the first rule announced.
We shall consider whether liability was established under the second rule quoted above. To recover under this rule, if the wind was a high one, the plaintiff must prove that the condition of the tree was so patently bad and had existed for such a length of time that permitting the limb to remain was equivalent to an utter disregard of the safety of the traveler on the street.
We have seen what the evidence was as to notice. What was the condition of the limb itself? The strongest evidence furnished by plaintiff was that a witness could break it with an ax. With the large number of trees there are in Wichita it would be a harsh rule that would state that where a limb was in no worse condition than this one, and had been there no longer'than it was, the city authorities showed an utter disregard for the safety of travelers in the street.
We hold that the demurrer of defendant should have been sustained. We are aware that this is a different result than was reached when the case was here before. See Turner v. City of Wichita, supra. When that case was here, however, defendant was urging that all the evidence compelled a judgment for defendant. The question of a demurrer to the evidence of plaintiff was not before us.
The judgment of the trial court is reversed with directions to sustain the demurrer to the evidence of plaintiff and dismiss the case.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in ejectment. Plaintiff prevailed, and defendant appeals.
The facts were these: In 1929 defendant borrowed $2,500 from a bank in Atchison, giving his note and a mortgage on a 109-acre farm as security. The bank assigned the note and mortgage to plaintiff. Thereafter defendant made default in the payment of interest and taxes; and to avoid foreclosure he conveyed the farm to plaintiff by warranty deed, pursuant to a contemporaneous agreement between plaintiff and defendant to this effect:
Plaintiff agreed to lease the farm to defendant for about twenty-one months — -from January 25,1933, until November 1,1934 — without any rental charge, and that the defendant should have the option to repurchase the farm during that interval for $3,300, which was the approximate amount of out-of-pocket money as principal, interest and taxes the farm was costing the plaintiff. In this contract was the following recital:
“It is mutually agreed and stipulated among the parties hereto that there is no indebtedness now owing from the said party of the second part [defendant] to the said party of the first part; that the option to purchase the above-named property on or before November 1, 1934, is definite and must be acted upon within that time by the party of the second part.”
Defendant did not take advantage of his option to repurchase and failed to vacate the premises at the end of the lease term, November 1, 1934.
On December 7, 1934, this action was begun. The petition stated the cause of action in the usual terms required in ejectment. The answer was a denial of plaintiff’s title. The facts were developed as stated above. Defendant adduced no defense, except the futile talking point that the note and mortgage had not actually been returned to him. He did not claim that he considered himself indebted to plaintiff in any amount whatsoever, and, of course, he was not. The quoted paragraph of his agreement was to the contrary. (Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127; Jett & Wood Merc. Co. v. Keoneke, 141 Kan. 791, 44 P. 2d 199.) The. fact that the satisfied note and mortgage had not been surrendered to defendant was without significance in this case. It did not impair the binding force of defendant’s written agreement nor that of his deed conveying the farm to plaintiff.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C, J.:
This action was brought by Sarah Jenkins against the Kansas City Public Service Company to recover damages sustained by her while alighting from a street car of the defendant. It is alleged that the injury sustained was due to the negligence of defendant in maintaining a defective floor of the vestibule of the car in which her heel caught and caused her to fall out of the front door upon the pavement, resulting in severe and permanent injuries. She recovered a judgment for $2,250, from which defendant appeals.
Two grounds of error are presented, one of which is that judgment for defendant should have been given upon the special findings. The jury found the defendant negligent in maintaining a defective platform or vestibule floor, that the heel of plaintiff’s shoe caught in the defective flooring; but it also found that the defect in the floor was visible and that the plaintiff did not look at the floor of the vestibule as she stepped therein or prior to walking thereon, and so it is argued that this nullifies the finding of negligence and that plaintiff’s own negligence in failing to look should be held to be the proximate cause of the injury. Attention is called to the fact that contributory negligence was not pleaded by the defendant, and that the answer was a general denial only.
Defendant contends that while it was bound to exercise the highest degree of care as to passengers, yet the passenger was also bound to exercise reasonable care for her own Safety. If contributory negligence was relied on as a defense it should have been pleaded in the answer. It has been decided that contributory negligence is an affirmative defense which must be alleged and proven by the party relying on it. (K. P. Rly. Co. v. Pointer, 14 Kan. 37, 50; K. C. L. & S. Rld. Co. v. Phillibert, 25 Kan. 582; St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408; Railway Co. v. Peck, 79 Kan. 413, 100 Pac. 54; Altwein v. Street Railway Co., 86 Kan. 220, 120 Pac. 550.) Under the general denial the defendant could introduce evidence to controvert that offered by plaintiff to the effect that defendant’s negligence was the proximate cause of the injury, and if plaintiff’s evidence proved that the cause was not due to defendant’s negligence plaintiff of course could not recover. Defendant has referred to Altwein v. Street Railway Co., supra, as an authority that it was unnecessary to allege the defense of contributory negligence. There the negligence of plaintiff was treated by the parties as an issue in the case just as if it had been pleaded. Evidence on the defense was received and the court instructed the jury that if the evidence showed that plaintiff’s act was the proximate cause of the injury suffered she could not recover. Under those circumstances the answer of defendant might have been amended or treated as amended to include the defense, and apparently it was so treated. In no sense is that case a departure from the established rule that contributory negligence is an affirmative defense to be alleged and proven by the defendant. It goes no farther than to hold that under a general denial the defendant may introduce any evidence which goes to controvert the facts which the plaintiff was bound to establish in order to sustain the action. Here the evidence did not tend to show negligence on the part of the plaintiff, and there was a finding that defendant’s negligence was the proximate cause of the accident. The special finding that the defect in the floor was visible and that she did not look at the defective floor prior to walking thereon did not amount to a finding that plaintiff was guilty of contributory negligence. It appears from the evidence that when the car was stopped at an intersection for passengers to leave the car, five or six persons passed out just ahead of plaintiff and some followed her. In that situation as passengers were crowding each other in the narrow passageway, there was little if any opportunity for plaintiff to look for defects in the floor. No duty devolved on the plaintiff to stop the procession, get down and inspect the floor to see if there were holes or cracks in it, which would render it unsafe to travel over. If she had done so, we can infer that she would have heard a command from the conductor to “step lively.” No duty of the defendant is more important to the safety of passengers, where large numbers of them enter and leave a car during a short stop, than that the floor of the passageway be safe to travel on. The plaintiff had a right to assume that this duty would be discharged by the defendant and that proper precautions for the safety of passengers had been taken. She had a right to assume that all parts and places of the car to be used by passengers were reasonably safe and fit for use, and especially the floor over which she was compelled to travel. The finding that the plaintiff did not look for a defect that was visible in the floor does not in these circumstances show contributory negligence on her part and did not constitute a ground to compel judgment for the defendant.
Complaint is made of instructions given by the court. In one the court said:
“Even though you may find from the evidence that plaintiff fell, while attempting to leave the car in question, and was injured by the fall, yet it is not sufficient to entitle her to recover unless it is further proven by the preponderance of the evidence that the proximate cause of such fall was the negligence of the defendant, substantially as alleged in plaintiff’s petition; and if you find from the evidence that the sole proximate cause of such fall was something other than such negligence of the defendant, your verdict will be for the defendant, regardless of what such other cause may have been, or what the extent of her injuries may be.”
This was followed by instruction six, in which the court stated:
“If you find from the evidence that the plaintiff was guilty of negligence, that is, of a failure to exercise ordinary care and prudence such as would reasonably be expected of a reasonably prudent and careful person under the same circumstances, and that such negligence on her part was the sole proximate cause of her injuries, you will find for the defendant.”
In earlier instructions the court had told the jury that the burden of proof was on the plaintiff to prove that the defendant was negligent as she had alleged and that such negligence was the proximate cause of the injury, and that unless she had proven these allegations the verdict must be for defendant. There was a further instruction that if plaintiff had failed to use reasonable care for her own safety she could not recover. Defendant argues that the use of the term sole proximate cause in the sixth instruction was erroneous. Contributory negligence of a plaintiff is defined as that negligence which concurs or cooperates with that of the defendant and presupposes negligence on the part of defendant. (Ross v. Railroad Co., 93 Kan. 517, 144 Pac. 844.) It is argued that the use of the word “sole” in effect advised the jury that it could not find for the defendant unless it found that the defendant was entirely free from negligence. The word should not have been used in the connection in which it was used, but we think it is clear from- the evidence and the other instructions that the jury could not have been misled nor the de fendant prejudiced by the improper term. Only prejudicial error affords ground for a reversal.
Finding no substantial error in the record, the order must be and is an affirmance of the judgment.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs in three causes of action seek to recover damages sustained by them by reason of the defendant’s failure to deliver telegraph messages to the plaintiffs in the language in which the messages were delivered to the defendant for transmission to the plaintiffs. Judgment was rendered in their favor on two causes of action, and the defendant appeals.
The answer of the defendant contained a general denial and an allegation that:
“The plaintiffs herein did not present to the defendant herein any claim in writing within sixty days after the messages were respectively filed with it for transmission.”
The message delivered to the defendant for transmission to the plaintiffs provided that:
“The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.”
The plaintiffs were engaged in the wholesale purchase and sale of eggs and poultry at Manhattan. The first cause of action was for damages sustained by reason of a mistake in the transmission of a telegram concerning a carload of eggs. The evidence disclosed that on August 11,1924, the plaintiffs shipped to the Omaha Cold Storage Company at Omaha, Neb., a car containing 400 cases of eggs, 120 of which were of a low grade and 280 cases of which were high-grade eggs; that on August 11, 1924, the defendant delivered a telegraph message to the plaintiffs purporting to come from the Omaha Cold Storage Company, worded as follows:
“PFE sixteen three naught eight arrived nothing but junk cannot accept your letter ninth shows hundred twenty cases dirties and chex in car five thirteen six seven three hundred twenty cases are in car sixteen three naught eight advise disposition Salina car O. K.”
The message delivered to the defendant for transmission to the plaintiffs was as follows:
“PFE sixteen three naught eight arrived nothing but junk cannot accept your letter ninth shows hundred twenty cases dirties and chex in car five thirteen six seven these hundred twenty cases are in car sixteen three naught eight advise disposition Salina car O. K.”
There was evidence which tended to show loss and damage sustained by the plaintiffs in the amount of $314.40.
The defendant argues that the mistake in the message delivered was not the proximate cause of the damage to the plaintiffs. In response to that argument it may be said that the plaintiffs acted on the message as it was delivered to' them; that they had the right to so act; and that such action resulted in loss to them. The defendant is liable to the plaintiffs for that loss as the reasonably anticipated, and probable consequence of the negligence of the defendant in transmitting the message.
2. The second cause of action was for damage sustained by reason of the wrongful transmission of a telegraph message concerning a carload of frozen dressed poultry shipped by the plaintiffs in November, 1924, to L. & G. Blanchard Co., in New York City. When that car of poultry reached that company it delivered to the defendant a telegraph message to be transmitted to the plaintiffs, as follows:
“WK New York NY Jan 20 1925
Hurst and Majors, Manhattan, Kans.
Three hundred sixteen boxes froze chickens and fowl your account because trouble had last week people refused buy sold all fancy turkeys thirty-eight to thirty-nine market very weak on ducks and geese trying move all in previous cars advise not buy any more duck or geese as quality very poor consider turkey market steady these prices but feel there will be break before Tuesday advise be careful our chicken and fowl market steady.”
The message delivered by the defendant to the plaintiffs read as follows:
“New York NY Nov 20 1924
Hurst and Majors, Manhattan, Kans.
Three hundred sixteen boxes froze chickens and fowl our account because trouble had last week people refused buy sold all fancy turkeys thirty-eight to thirty-nine market veiy weak on ducks and geese trying move all in previous cars advise not buy any more ducks or geese as quality very poor consider turkey market steady these prices but feel there will be break before Tuesday advise be careful our chicken and fowl market steady.”
There was evidence which tended to prove that by reason of the error in the transmission of the message, the plaintiffs understood that the poultry had been accepted by the L. & G. Blanchard Co., until a few days had elapsed, when the poultry was disposed of at the order of the plaintiffs, and that the plaintiffs sustained damage by reason thereof in the sum of $355.24, for which amount judgment was rendered in their favor.
The proposition urged by the defendant on the second cause of action is that the claim for damages was not presented within sixty days after the message was filed with the company for transmission. We copy from the abstract of the evidence concerning the presentation of a claim for damages:
“On redirect examination by Mr. Springer Mr. Majors was handed a document which was introduced in evidence as ‘Exhibit C’; which he testified was a carbon copy of a letter he sent to the Western Union on August 18, 1924, being a formal claim filed in connection with the error made in the message of August 11, 1924. (The one concerning the eggs.)”
Concerning the poultry the abstract discloses that Mr. Majors further testified:
“He did not do anything for a few days . . . that he did not discover that there was an error and the poultry not sold until he received a letter from Blanchard from which he learned that the word should be ‘your’ instead of ‘our’; that this letter was received in due course of mail, which was the first notice he had that the poultry was being held as his property in New York; that he then took it up with Blanchard and Company and the Western Union to find out where the error was made; that he simply had them stored to his account, that he wrote a letter to the Western Union similar to the one read a short time ago, but had no copy of it.”
There was substantial evidence to show that claim had been presented on the telegram relied on in the second cause of action.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action originally brought in the city court of Pittsburg by O. N. Powers against Schultz brothers to recover $700 for the. wrongful conversion and also the loss of the use of a number of articles.
An answer was filed by defendants, to which a reply was made by plaintiff. Affidavits for garnishment were presented upon which summons was issued. It appears that six continuances were asked for and granted for various reasons and some of them were obtained by agreement of parties, the continuances running from July 27, 1927, to February 7,1928. At the latter date the case was called for trial, when plaintiff announced that he was ready, but counsel for defendants stated that he was not ready because his clients who were on the way could not reach the court until the afternoon of that day. The court ruled against further postponement of the case and made the following entry:
“And it appearing to the court that said cause had been continued from time to time to suit the convenience of the parties, and the case should not be further continued, counsel for defendants stated to the court that his client could not be in court for hearing and trial until three-thirty in the afternoon of said day, and consented that judgment might be taken by default. Now, therefore, in view of the foregoing premises, it is the order and judgment of the court that the plaintiff O. N. Powers do have and recover of and from the defendants and each of them judgment for the sum of $700 and the costs of this action.”
On the following day the defendants undertook to appeal from the judgment of the city court to the district court and a full transcript of the proceedings in the city court was filed in the district court. When the case was reached in the district court plaintiff moved to dismiss the appeal on the ground that the judgment rendered was not one from which an appeal might be taken. The motion was overruled, whereupon counsel for plaintiff withdrew from the case. Some testimony was then offered by the defendants, at the close of which the court entered judgment dismissing the action without prejudice to a future action. From this judgment plaintiff has appealed and is insisting here that the judgment of the city court as rendered was in fact a judgment by confession, and therefore not one from which an appeal is allowed, and that is the question presented here for review.
The city court is clothed with the powers, duties and jurisdiction of a justice of the peace, except that the city court has jurisdiction for the recovery of money up to the amount of $1,000. Plaintiff calls attention to the code provision with reference to the allowance of appeals, which provides:
“An appeal may be taken from the final judgment of a justice of the peace in any case except in cases hereinafter stated, in which no appeal shall be allowed: First, on judgments rendered on confession; second, in jury trials where neither party claims in his bill of particulars a sum exceeding twenty dollars.” (R. S. 61-1010.)
Can the judgment rendered in the city court be regarded as one by confession? We think not. The attorney for defendants consented that judgment might be entered as by default, not by confession. Provision is made by a statute regulating the taking of judgment by confession and the general rule is that there must be a strict compliance with statutory regulations respecting the entry of judgment by confession. (McCrairy v. Ware, 6 Kan. App. 155; 34 C. J. 102.) It is provided that:
“Judgments may be entered upon confession by an attorney authorized for that purpose by a warrant of attorney, acknowledged or proved as conveyances of land, without any previous process or proceeding; and judgments so entered shall be a lien from the date of entry.” (R. S. 60-3111.)
Another provision provides:
“Before any judgment shall be entered by confession, an affidavit of the defendant must be filed, stating concisely the facts on which the indebtedness arose and that the amount of such indebtedness is justly due and owing by the defendant to the plaintiff.” (R. S. 60-3113.)
Still another provision is that:
“Every attorney who shall confess judgment in any case shall at the time of making such confession produce the warrant of attorney for making the same to the court before which he makes the confession, and the original or a copy of the warrant shall be filed with the clerk of the court in which the judgment shall be entered.” (R.S. 60-3115.)
There was no compliance with any of these statutory provisions and hence the judgment rendered cannot be regarded as one by confession from which no appeal can be taken. It is no more than a judgment by default, and an appeal .from a judgment by default is not prohibited by the legislature. Here the defendants had filed an answer denying liability for damages. • The court had refused to postpone the case for a few hours until the defendants who were on the way might arrive. It is said that the car in which the defendants were coming to the court became “stuck in the mud.” The attorney for'defendants was therefore without clients or witnesses and was forced to agree that judgment might be taken by default. It was an action in tort in which unliquidated damages were claimed. There was no agreement as to the amount, if any, of the damages sustained, and no proof of them was produced. The default did not admit the amount of damages, and it was incumbent on plaintiff to prove the extent of the damages and this was not done. It is needless, however, to discuss the effect of a judgment by default since the statute does not prohibit appeals from such judgments. As the judgment involved was not a judgment by confession the defendants were entitled to appeal from it, and therefore the district court did not err. in its refusal to dismiss the appeal taken from the judgment.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued Sam Austin and his son, Jean Austin, to recover $121.98 on an account for labor, materials- and expenses in making repairs on a truck owned by Jean Austin'. Judgment was rendered' against both defendants in favor of the plaintiff for the amount sued for, and the defendant Sam Austin appeals. Jean Austin does not appeal.
The defense of Sam Austin ivas that he was not an owner, part owner, or interested in the truck on which the materials had been placed, the labor performed, and the repairs made, and that the truck was entirely the property of his son, Jean Austin.
The question presented is one of the sufficiency of the evidence to sustain the judgment against Sam Austin. The plaintiff argues that the following evidence was sufficient to support the judgment. The plaintiff testified that:
“It was a Chevrolet truck . . . The driver brought it in. I never saw any of the Austins, that visit. On the 21st of October, this driver had a wreck, Mr. Austin (Sam) and Jean were in Colorado and the other son, Ed, came to me and told me to pull it in. It set in my place of business for two or three days and he came and wanted to know if I had done anything with it. I wired to Denver for a new frame and when I got it I had to take the grain bed off, or sand bed, and the motor and install the new frame. Right after-that they got stuck in the sand pit and Mr, Austin — Mr. Sam Austin — came to the garage and gave me permission to put the springs they had broken in. ... I never saw Jean driving it; a driver was in control of it. When I put this spring in, Sam Austin came to the garage himself and told me not to let anybody have the truck; he finally brought a driver and took it out, Sam did. Sam said he didn’t believe the driver was competent and not to let him have the truck, I don’t know who this driver was.”
Sam Austin testified in substance as follows:
“I loaned him (Jean) the money to make the first payment on this truck; my wife and I made him a loan to make the first payment, and I subsequently gave him $50 once to make a payment with. He had to make a payment of $83 and something and that made $600 I had against the truck. Jean never gave me a note or mortgage for the money I loaned him; we just financed him. When he was leaving he wanted to give me the truck for what he owed me, but I told him I didn’t want the truck and he traded it on a Chevrolet car, and I afterwards became the owner of the car, it belongs to I and my wife. Up to the time of the attachment Jean had been using the car.”
A constable of Finney county testified in substance as follows:
“I served the attachment in this case on the Chevrolet car. I found Jean and told him I was attaching the car for Mr. Rhodes and we drove around and found Sam and Sam said that it was' his (Sam’s) car, Jean said nothing at the time I was attaching it.”
The evidence further disclosed that the bill for the repairs was charged to Jean Austin; that such payments as were made thereon were made by him; and that when the truck was being repaired Jean Austin was in Colorado. Outside of what is above outlined there was no evidence to show that Sam Austin was the owner of or interested in the truck. The truck was used by Jean Austin in the trucking business. The evidence does not disclose that Sam Austin was interested in that business in any way whatever. There was no evidence to show that Sam Austin contracted for repairs on the truck, nor that he delivered the truck to the plaintiff for the purpose of having those repairs made. The most that the evidence established was a fatherly interest in the affairs of his son, Jean Austin.
Sam Austin cannot be held liable on the account until it is shown that he contracted for the repairs; or that he was in some way interested in the truck or in the business in which it was used; or that in writing he had agreed to pay for the repairs. There being no evidence to show any of these facts, it must be held that the evidence was not sufficient to support the verdict.
The judgment is reversed, and the trial court is directed to render judgment in favor of the defendant, Sam Austin.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for slander. The verdict and judgment were for defendant, and plaintiff appeals.
Plaintiff was a' member of the Baptist church of her city, was clerk of the church, and was a teacher in the public schools. Defendant was a member of the board of education of the city and chairman of the committee on school buildings. In November, 1925, the janitor of the building in which plaintiff taught reported to defendant that the pastor of the Baptist church was coming to plaintiff’s room after school- hours and remaining until after dark. The pastor was invited to appear at a meeting of members of the school board, which was regarded as confidential. He explained that he went to the school building to do church work which required plaintiff’s assistance. After the meeting he discontinued his visits — there was evidence he agreed to keep away — and it was believed the matter was at rest. In February, 1926, the janitor gave information to a member of the school board of renewed visits and of improprieties. Investigation led to a special meeting of the board on March 8. The janitor, the pastor and plaintiff were called before the board in executive session. The result was, the board decided that plaintiff should be permitted to teach the remaining months of the school year, but that she should not be reemployed.
Following the special meeting there were rumors and gossip. Plaintiff’s brother, Clarence Ebaugh, heard there had been some kind of an investigation. His mother told him some of the principal things, and he went to the president of the school board for further information. The president told him something of the story, and Clarence asked if there was anyone else he could see to find out more. Clarence and defendant were friends of long acquaintance, and Clarence went to defendant “to find out the truth of the rumors he had been hearing” about his sister and the pastor. Defendant knew Clarence was plaintiff’s brother. The interview was private. Clarence told defendant what he wanted to know, and defendant gave him the information defendant had acquired. The interview occurred on March 30.
J. C. Johnson’s wife was a cousin of plaintiff. Plaintiff’s mother told Mrs. Johnson plaintiff had lost her position in the city schools. Johnson was a resident of the city, was interested in plaintiff, and wanted her to have her place if it could be arranged. Johnson knew defendant was a member of the school board, and had been told defendant was chairman of the board. Johnson testified he went to defendant’s office to talk to him concerning his duties as a member of the school board in the employment of teachers. The interview occurred about April 9, and was private. Johnson asked defendant how serious or how grave the charge was against Miss Ebaugh to justify the school board in turning her down and not giving her position back.
Defendant gave Johnson the reasons for not reemploying plaintiff. Johnson knew defendant was telling what the janitor reported he saw. At the close of the interview Johnson thanked defendant for the information,, shook hands with him and departed. Johnson then went to see other members of the school board to discuss advisability of circulating a petition for plaintiff’s reemployment.
Charles S. McGiffert was a trustee of the Baptist church. He heard a rumor connecting the pastor of the church with plaintiff. One of the deacons of the church asked McGiffert to see defendant about it. The deacon and the trustee went into defendant’s private ■office, and the deacon asked defendant to tell the story to the trustee. All the ensuing conversation related to what occurred at the •executive meeting of the school board. McGiffert understood that what was said at the meeting was what the janitor claimed he saw. The interview with McGiffert occurred on April 9.
The petition contained three counts, based on the interviews with Ebaugh, Johnson and McGiffert. A fourth count, based on a statement concededly privileged, was withdrawn by the court from consideration by the jury.
Defendant said to Johnson it was unfortunate for the girl, and said to plaintiff’s brother that if the preacher had possessed the sense God gave a goose it would not have happened; but no evidence is abstracted disclosing any specific statement concerning plaintiff made by defendant at any one of the three interviews which was not within the fair and reasonable purview of the inquiry.
The court instructed the jury that Ebaugh, Johnson and McGiffert each had an interest in the subject to which their inquiries related, and defendant’s communications to them were conditionally privileged. The petition and the brief of plaintiff present the case as if it were one of a member of the school board going about, after final action by the board, and voluntarily spreading slander. The rule of common interest, as for example, common interest of members of a school board, members of a church, or other organization, is invoked, and it is said one friend may not, in conversation with another friénd, slander a third person, however strongly solicited to do so. The case is governed by an entirely different rule — the rule relating to confidential communications made in good faith in response to inquiries by a person having an interest in the information sought. In such cases the person of whom inquiry is made rests under a duty, legal, moral or social, according to the nature and purpose of the inquiry, to tell what he knows regarding the subject inquired about. (36 C. J. 1246, §214; 1271, §260. Newell on Slander and Libel, 4th ed., §§ 409, 410.)
Clarence Ebaugh was plaintiff’s brother.
“The plaintiff, after his dismissal by the defendant, had tried for other situations, but failed because he could not get a character from the defendant. The brother then asked the defendant why he declined to give one. The de fendant was bound to state in answer, not only why he dismissed, but why he refused to give a character.” (Taylor v. Hawkins, 16 Ad. & Ell. n. s., [Q. B.] 308, 322.)
Johnson was a relative of plaintiff by marriage, was in fact interested in the reemployment of plaintiff, and was a citizen commendably interested in decent discharge of the school board’s official duty in the matter of employing teachers. McGiffert was a trustee of the church of which plaintiff was a member, holding the office of clerk, and whose pastor was involved. The result is, defendant’s answers to the inquiries of Ebaugh, Johnson and Mc-Giffert were conditionally privileged. This leads to consideration of the subject of malice.
Johnson testified defendant was bitter toward the pastor. What defendant said to Clarence Ebaugh concerning the pastor has been stated. There was other evidence that defendant was very indignant toward the pastor. A’ committee of the ministerial union of the city had charge of religious education in the schools. The ministerial union took cognizance of the rumors regarding the pastor’s indiscretions. Four ministers testified that at a meeting of the union the pastor not only admitted he had made an ass of himself, but he said he would make it stronger; he had made a damn fool of himself. Of course the pastor denied this, but his reverend associates so testified. From defendant’s point of view, the school board saved the situation in November, but the pastor did not stay away, and he furnished the occasion for the gossip which compromised himself, compromised the plaintiff, compromised the school board, and made it necessary, in the judgment of the board, to drop plaintiff as a teacher for the good of the school. It was not enough that defendant bore malice against the pastor. Plaintiff was obliged to prove that defendant was actuated by malice in fact toward her. The court instructed the jury that malice toward the pastor did not warrant an inference of malice toward plaintiff, and malice toward plaintiff should be determined by consideration of all the evidence.
In Newell on Slander and Libel, 4th ed., § 711, appears the following:
“It cannot be shown- in a libel action that defendant has libeled or threatened to libel third persons, but it has been held that, in judging of the malicious character of an alleged libel, the jury may take into consideration the whole publication, and if it contains statements concerning other persons ■which are malicious, the jury may infer therefrom that what it said of the plaintiff is also malicious.”
The authority for the concluding portion of the paragraph is the case of Miller v. Butler & another, 6 Cushing (Mass.) 71 (1850). The author’s text is taken from the reporter’s headnote, which was derived from a ruling of the trial judge made during the argument of the case. The letter containing the libel is not quoted in the report of the decision, and the ruling may have been perfectly proper under the circumstances, but it did not announce a general rule of law. The pertinent portion of the opinion of the supreme court follows:
“The jury might properly take into consideration the entire letter and all the circumstances, and decide whether that part of the letter which was applicable to the plaintiff was malicious on the part of the defendants.” (p. 74.)
The only expression of defendant’s attitude toward plaintiff contained in the evidence in her behalf is defendant’s statement to Johnson that it was unfortunate for the girl. In that interview Johnson said the preacher ought to be strung up. Malice toward plaintiff on Johnson’s part is scarcely inferable from his statement. The circumstances forbid. Sympathy for the young woman in plaintiff’s situation, and not malice, is a perfectly natural sentiment. Defendant testified he bore plaintiff no ill will, and had done all he could to protect her; and in this instance the court properly required the jury to consider all the evidence in determining whether defendant maliciously defamed her.
The jury found plaintiff was innocent of the improprieties on her part which had been talked about, and found that defendant acted both without bad faith and without malice, in his conversations with those who interrogated him.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Appellant complains that in an action for divorce the court refused to make a proper division of property.
On May 14, 1932, appellant filed her action for separate maintenance. Before it was tried the parties effected some reconciliation. On May 23, 1934, apparently without cause, and without knowledge of her husband, appellant loaded a Buick coupé with some linens, silverware, electrical appliances, etc., and taking what money there was in the house, left their home and went to Fort Worth, Tex. About the same time, a married man in the community where the parties lived disappeared with his car. On May 28, 1934, appellee, by leave of court, filed an answer and cross petition and served a copy on the attorney who represented appellant when the original action was filed. Shortly thereafter appellant wrote her husband explaining she hated the farm, and life was too short to live where she hated it. Under date of May 29, 1934, she caused attorneys in Texas to write her husband that she was suing for divorce, enclosing waiver of summons, asking that he pay the fees and costs of $35, and to send such deeds as he desired his wife to sign and they would be signed and returned. On June 4, 1934, the instant case was tried and the court found the husband had provided well for his wife, had spent large sums, withput specifying any amount,'to keep the wife contented and happy; that the husband owned an eighty-acre farm and certain personal property, and also made findings as to the wife’s leaving, that she took certain personal property, value not stated, reciting the correspondence above noted, and granted the husband a divorce and decreed:
“. . . That the plaintiff has taken from the defendant, without lawful right or excuse, valuable personal property including money, the amount of which is not definitely ascertained, and all valuable silver plate, linens, both table and bed linens, and that the value of the same is equal to or greater than any other equitable division of the property the court could make, and that the same, except the automobile which the plaintiff also took from the defendant, is hereby set aside to plaintiff as her equitable share of the parties.”
The real estate and the “other personal property which the defendant left behind” was awarded to defendant free from the claims of plaintiff.
On August 24, 1934, plaintiff moved to set aside this judgment for reasons not here important. The trial court denied the motion. On September 17, 1934, plaintiff’s motion to open up the judgment was allowed and further testimony was heard. At that time no complaint was made as to the granting of the divorce; the complaint was as to division of the property. On the hearing, the wife made many admissions concerning her leaving, what she did on the way to Texas, her letters to her husband and the letters her attorneys wrote her husband, which reflected no credit on her and warranted the trial court in giving little credence to her testimony. The court made an oral statement at the conclusion of the hearing, which, in part, was:
“This proceeding, I feel, is an outrage, asking that we charge this man’s property with any contribution for this woman. I am not going to do it. I don’t believe her testimony. I think this is wrong. . . I think that (I) made an order that she could have her personal belongings, her clothing and some few things, such as that, if she knows where they are, she would probably be entitled to them and she shall have them, as I said before. The original judgment and decree stands.”
The journal entry of judgment recites:
“7. That when plaintiff and defendant were married the plaintiff had no property whatever, that the defendant by his efforts accumulated eighty (80) acres of land and several thousand dollars in money. That the plaintiff got all the money the defendant accumulated and spent it on automobiles and other matters save and except what she took away with her and the farm with its slight equipment of work stock, machinery, and household goods which she did not take away.
“8. That the plaintiff at the time she left the defendant on May 23, 1934, was satisfied that she had had her equitable share of the property, including the property and money that she was taking away with her, the exact amount of which does not appear in the evidence, and the court further finds that the money she has had from the defendant in ways aforesaid and the moneys and property that she took away from the home of the parties at the time she left the defendant on May 23 constituted and was the full equitable amount of the property to which she was entitled as alimony.
“9. The court further finds that the said automobiles which defendant claims she bought with her money were not bought with her money but were bought with the defendant’s money. The court further finds that the said farm was not bought with money or any part of the money that belonged to the plaintiff but was bought with the personal earnings of the defendant after having fully and well provided for the plaintiff.”
In the abstracts and briefs there is dispute as to whether a motion for new trial was filed, but a letter from the clerk of the lower court shows one was filed September 17, 1934. Notice of appeal was filed September 24, 1934, but for some reason was not certified and filed in this court until May 4, 1935. Our code requires the clerk of the district court to forthwith transmit to the clerk of the supreme court a certified copy of the notice of appeal and proof of service and of the journal entry of the judgment or order appealed from. (R. S. 60-3307.) The reason why this statute was not observed is not made to appear. It may be observed that an efficient administration of justice requires prompt attention to it, and when notice of appeal has been served and filed with the clerk of the court it is his duty to forthwith transmit the required documents to this court. Forthwith does not mean seven months later. The clerk of the district court was derelict in his duty.
The statement of what transpired in the court below, the remarks of the trial court and the statements in the. journal entry of judgment show the trial court misconceived the law applicable to the situation. Since the judgment in this case, this court had occasion to consider a similar situation in Savage v. Savage, 141 Kan. 851, 44 P. 2d 272, where an allowance of less than $300 out of the husband’s property worth $4,000 to $5,000 was disapproved, and in the opinion it was said:
“It was on such and similar considerations that the legislature enacted that no matter how culpable a delinquent wife may have been, when she is divorced some substantial provision must be made in her behalf so that she will not forthwith become an object of charity or the victim of her own frailty.” (p. 853.)
The record does not disclose what property the defendant had at the time of the marriage but does show the real estate was acquired after marriage for a cash consideration of $4,800, which the wife testified was the result of their savings during married life. The trial court seems to have been impressed with defendant’s statement he earned and the plaintiff spent the money. He took her “for better or for worse.” When she left she took some articles of clothing, linens and silverware, but it is significant that there was no testimony as to their value. The amount of money she took, as claimed by the husband and found by the court, was not disclosed. As we read the record, the wife denied taking money, and the husband did not show any amount. The household furniture, which the wife said was worth $300, was left in the house. Neither can it be said the husband is entitled to the farm because it was bought with his earnings “after having fully and well provided for” his wife. That was his marital duty. At least in contemplation of law, during all that time he was availing himself of the services she rendered in taking care of the house, cooking meals, and performing such other duties and services as were incumbent upon her as his wife.
In our opinion, the trial court abused its discretion and did not make a fair and equitable division of property between the parties. That part of the judgment determining property and property rights is reversed and set aside, and the cause remanded with instructions to hear testimony with respect to the situation as it existed on and about June 4,1934, and from such testimony to make a fair and just division of such property as is contemplated by R. S. 60-1511.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages based on fraud.
The allegations of plaintiff’s petition, which was filed November 3, 1934, are summarized as follows; In the fall of 1932, plaintiff was the owner of a half section of land encumbered with a first mortgage for $6,000, interest being in arrears and taxes being delinquent. He was also indebted to the defendant bank in the sum of over $5,200, the debt being secured by assignment of a life insurance policy having a small cash-surrender value; plaintiff sought a loan of additional money to pay up arrearages on the real-estate loan; the bank asked for conveyance of the land, plaintiff to have two years to redeem; that later, and on October 26, 1932, plaintiff was at the bank and a deed was prepared, which plaintiff was asked to execute, and was then taken out for execution by the husband and wife; that when the deed was executed an officer of the bank, who acted as notary, told plaintiff and his wife that they had two years in which to redeem and the use of the land; that after the deed was executed, plaintiff and the bank officers went back to the bank where the deed was delivered to the bank and the bank gave plaintiff a letter or receipt with reference to the transaction; that plaintiff and his wife believed the deed which they signed contained the substance of the terms previously agreed on, and that they relied on what the bank officer said when delivering the deed, and for that reason did not actually read the deed; that the deed did not contain the terms as to plaintiff having two years to redeem and the use of the land, as previously agreed on, and that the officers of the bank knew that no such provisions were in said deed and letter; that the representation was false and known by the bank and its officers to be false, and was made with intent to deceive plaintiff and that he should act on it; that the first time plaintiff had any knowledge he was not to have the use of the land and the right to redeem was some time after May 10,1933, when the bank informed 'him it would take the wheat from the real estate; that in June he examined the record of the deed and found for the first time it contained no provisions as to his right to redeem or to retain use of the land. For our purposes it is not necessary to detail allegations with reference to plaintiff being a customer of the bank; that the land was sold to a third person, etc. Plaintiff sought to recover the value- of a wheat crop growing at the time his deed'was delivered, and the value of the use of the real estate for two years thereafter as compensatory damages, and also exemplary damages.
The bank and its cashier, the defendant Waters, filed substantially identical answers and an amendment thereto denying any fraud and alleging the transaction was an absolute sale of the land by plaintiff to the bank, the consideration being the cancellation and surrender of plaintiff’s notes to the bank, and that after the delivery of the deed no indebtedness of plaintiff or his wife continued to exist. The charges of fraud were denied, and it was alleged that the deed was exactly what it purported to be, namely, an absolute conveyance. It was further alleged that relying upon the settlement with plaintiff and the conveyance of the land to it and in good faith believing the sale final, it sold the land to a third person, who immediately went into possession. It was further alleged that upon delivery of the deed on October 26, 1932, and contemporaneously therewith the bank delivered to plaintiff a letter containing recitals hereafter referred to. A copy of the letter was attached as an exhibit.
Plaintiff’s reply says a letter was delivered under the circumstances-set out in his petition and as a part of the plan to defraud him, and said letter was not read by plaintiff and plaintiff did not discover the fraud until on or about June 21,1933.
The letter referred to in the petition, answer and reply, and a copy of which was attached to the amended answer, was as follows:
“The Protection State Bank
Protection, Kan., October 26, 1932.
“T. M. Dorsey, Protection, Kan.:
“Dear Mr. Dorset — -We are in receipt of your warranty deed conveying title of the north half of section seven, township thirty-two, range twenty (N% sec. 7, twp. 32, R. 20), to the Protection State Bank, Protection, Kansas, subject to a mortgage in the sum of six thousand dollars ($6,000) held by the Warren Mortgage Company, of Emporia, Kansas.
“We are taking this title in payment of sum of fifty-two hundred sixty-five dollars, thirty-one cents ($5,265.31) due and owing to this bank, leaving a balance due us of two hundred fifteen dollars ($215) for which we agree to carry in form of note due not later than July 15, 1933.
“This transaction will be consummated upon the completion of the abstract showing merchantable title.
“Upon the completion of this deal, we will hand to you your insurance policy in the Mutual Life Insurance Company of New York, and return to you your assignment of said policy. “Respectfully yours,
“The Protection State Bank,
“J. B. Waters, Cashier.’’
Plaintiff’s motion for a judgment on the pleadings was denied. At the conclusion of plaintiff’s opening statement defendants moved for judgment on the opening statement and pleadings, which motion was denied, as was their objection to introduction of evidence. The trial proceeded, and defendants demurred to plaintiff’s evidence as not providing a cause of action, and that any cause of action was barred by the statute of limitations. This demurrer was overruled. Thereafter defendants offered their evidence and the cause was submitted to a jury, which was unable to agree upon a verdict and was discharged. Shortly thereafter defendants filed notice of appeal from the rulings above noted, which rulings are likewise set out in the specifications of error. Although four rulings are mentioned, and although the argument in the briefs is somewhat divided, it is noted here that in the pleadings, opening statement, or in the evidence, there is no dispute that the letter above quoted was written and delivered simultaneously with the delivery of the deed, which it is alleged was fraudulently procured. The sole question necessary to be discussed for a determination of this appeal is- whether the acknowledged receipt of this letter started operation of the statute of limitations. If it did, the action was commenced too late, and any one of defendants’ motions or their demurrer should have been sustained ; if it did not, the trial court ruled correctly.
Appellants contend that appellee’s pleadings, statement and evidence show no more than that he executed a deed without reading it and delivered it at a time when he received a letter stating clearly the terms of the transaction as had and completed; that if the transaction was fraudulent of appellee’s rights he had immediate notice of it, and any cause of action appellee had was barred when the action was filed.
Appellee, to support the trial court’s ruling, does not contend that the letter, in content and completeness of statement, was not sufficient to give ample notice, but does contend that the execution and delivery of the deed and letter having been procured upon false representations as to what they contained, under the circumstances he was not required to read either the deed or the letter on October 26, 1932, the date of their respective deliveries, or at any time subsequent until he had some fact called to his attention sufficient to put him on inquiry. Appellants argue that appellee cannot so excuse his failure to read his deed before executing it, or if failure to read the deed was at all excusable, he was given a letter which clearly showed the transaction had not been completed, as appellee alleges it was to have been, and if appellee was defrauded, as he claims to have been, he had, through the medium of the letter, immediate notice thereof.
In the briefs of both appellants and appellee are many citations of authority dealing with the exercise of diligence in the discovery of fraud. Time and space prevent a detailed discussion thereof. There is no doubt there are exceptions to the rule that where a person is able to read the English language he is bound to know the contents of any document which he signs. Appellee seeks to bring himself within the exception that where one party procures another to sign a writing by fraudulently representing it contains stipulations agreed on when in fact it does not, and the signer, relying on' such representations, is induced to omit the reading, the mere fact of singing without reading does not preclude the signer from contesting validity of the contract, nor does it put him on notice that a fraud has been committed. Such is the principle of Tanton v. Martin, 80 Kan. 22, 24, 101 Pac. 461, where decisions of this court are cited. But the principle there enunciated is not decisive of the case before us. There the question was the binding effect of signing without reading the document; here the question is when the signer is bound to take notice he has been defrauded. In the Tanton case there was no showing the signer received a copy of the lease in question, nor was the question of the statute of limitations involved, and the same is true of the cases cited in the Tanton case. In the case before us while appellee’s pleadings, opening statement and evidence show why he did not read the deed and discover the alleged fraud, they also show the execution and delivery of the letter which it is admitted contained a complete stateznezzt of the transaction. While the appellee’s pleadings and statement make no reference to the date when the deed was recorded, nor does the testimony as abstracted show the date, a statement in the counter abstract is that it was recorded November 5,1932. As has been stated, the action was filed November 3, 1934. It thus appears that if the question of notice depended on the time the deed was recorded, two years had not elapsed. If it depended on the letter, two years had elapsed.
A situation quite similar in principle was involved in Hinderliter v. Bell, 114 Kan. 857, 221 Pac. 252, where plaintiff sought to set aside a deed on the ground she was induced to sign without reading on the representation it contained certain stipulations. Her petition showed that contemporaneously with the execution of the deed a contract which set forth the entire transaction was executed and that she retained a copy thereof. After discussing effect of z’ecord of the deed as notice, this court said:
“However, the plaintiff had more than the knowledge imparted by the public records. In executing and acknowledging the execution of the instrument she had an opportunity to learn the character of the instrument and that it operated as a transfer of her interest in the land. In the petition it is stated that a copy of the contract was sent to her after the execution thereof. This she had in her possession for more than four years, and in it was the plain statement that she had on that day conveyed all her interest, right and title to the land, describing it. It also contained a full statement of the consideration for the conveyance, reciting the monthly allowances the grantees were to pay to her, the furnishing to her in sickness of medical attendance" with the care of a competent nurse. This agreement not only gave her notice of the execution of the deed and the transfer, but also of the conditions-that the grantees were to perform in consideration of the transfer. It furnished her knowledge of the fact, too, that the conditions to be written into the contract, namely, that the land should stand as security for performance and that an addition to the house for her use was to be erected, and also that provision was to be made for her if she chose to move to town, were not included in it.
“Assuming that she was defrauded in the transaction she had the means of information and must be held to have had knowledge of the conveyance she had made and of the conditions embraced or omitted from the contract. This knowledge she gained or could have gained from the contract, and the slightest diligence would have revealed the things and wrongs of which she complains. One who has an instrument in her possession stating the terms and conditions of the transfer cannot shut her eyes and say that she was unaware of provisions distinctly written therein. Concealment of the transfer after it was made is not charged nor was there any attempt to throw her off her guard or divert her attention from the contents 'of the papers she signed nor is it averred that there was any fraud by the defendants to prevent her from ascertaining or availing herself of the contents of the papers or the record of the transfer. It must be held that she had notice of the fraud and that the cause of action accrued more than two years before her action was brought.” (p. 861.)
While in the case at bar appellee did testify that some months after the transaction an officer of the bank asked him if he were going to be able to redeem, there is no claim that anyone prevented him from reading the letter delivered to him, or from examining the record of the deed; in fact, he says he did examine it about June 20, 1933. It is not necessary that we repeat what was said in the Hinderliter case, as quoted above. We have before us a case where the party claiming to have been defrauded was given a statement of the transaction as actually completed, and a statement which he was not prevented from reading at the time of receipt or at any time thereafter. He cannot now be heard to say he was under no obligation to examine it to determine whether it stated his version of the transaction. Had he read it when he received it, or when he did read it, had he taken note of the fact he should have read it promptly on its receipt by him, he would have known that he had two years from that date on which he received it to bring his action to rescind or to recover damages as the case might be.
The court erred in denying defendants’ motions for judgment on the pleadings, and for judgment upon the opening statement and on the pleadings, their objections to the introduction of evidence, and in overruling their demurrer to plaintiff’s evidence, and its various rulings and decisions are reversed, and the cause is remanded with instructions to render judgment for the defendants.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money. Judgment was for defendant. Plaintiff appeals.
Plaintiff and defendant were stockholders in the Hollenberg State Bank. Some time prior to December 31, 1931, the bank had acquired title to 520 acres of land. It became necessary in order to comply with orders of the banking department that this land be taken from the assets of the bank. For that purpose some of the stockholders of the bank, including plaintiff, entered into a contract. Pursuant to the terms of that contract plaintiff and one Patterson advanced $22,000 to the bank in order that this real estate might be taken out of the assets of the bank. This contract was as follows:
“Whereas, The Hollenberg State Bank, of Hollenberg, Kan., is the owner of the following described real estate, to wit: . . .
“And, whereas, a part of said land is mortgaged to Trevett, Mattis & Baker Co., of Beatrice, Neb., for $4,000, and R. A. Hyland has advanced the sum of $19,000, and $1,750 accrued interest to December 31, 1931, and George Patterson has advanced the sum of $1,000, and $250 accrued interest to December 31, 1931, in charging said land out of the assets of said bank.
“It is hereby agreed by and between the undersigned stockholders of said bank, that a warranty deed shall be executed and delivered to each stockholder for his undivided interest in said land in such proportion thereof as the shares owned by him or her bears to the 100 shares of the capital stock of said bank, subject, however, to the $4,000 mortgage held by Trevett, Mattis & Baker Co.
“In consideration thereof, said stockholders hereby agree to make settle ment with R. A. Hyland and George Patterson in such proportion thereof as the shares of stock owned by him or her bears to the 100 shares of the capital stock of said bank.
“It is further agreed by and between the undersigned stockholders of said bank that the above-described land shall be sold at any time the majority of the stockholders of said bank shall agree upon and at a price agreed upon by them.
“It is further agreed by and between the undersigned stockholders of said bank, that deeds shall be prepared and executed on or before January 4, 1932, of as soon thereafter as can be done, at which time each stockholder of said bank shall make settlement and receive deed as aforesaid.
“In case such settlement be made by note, interest to commence January 1, 1932.”
On May 4,1933, a special meeting of the board of directors of the bank was called for the purpose of making final disposition of the land. There was an indebtedness against this land of $27,600. At this meeting it was determined by the stockholders to sell the land at $25 an acre or $13,000 with the purchaser assuming the mortgage, thus leaving a deficit of $14,600 or $146 per share. The land was conveyed to R. A. Hyland and Florence Hyland. There were 100 shares of stock in the bank. Defendant owned five of them — hence the share of defendant in the deficit was $730. Other stockholders who had signed the contract made settlement of their proportionate shares under it. In the meantime any interest Patterson had in the land was assigned by him to Hyland, so this action was brought by Hyland. Defendant refused to make any settlement. This action followed.
The petition alleged facts about as they have been set out here. The evidence of plaintiff sustained the allegations of the petition. At the close of the plaintiff's evidence defendant interposed a demurrer to it. This demurrer was sustained. The appeal is from that order.
The position of defendant is that under the terms of the contract she was to receive an undivided one-twentieth interest in the land and in return was to pay $1,300; that the interest in the land never was conveyed to her, hence she cannot be held liable under the contract. She further argues that the contract is void for want of mutuality, since it appears from an examination of it that there was no obligation arising from the contract that defendant could enforce against plaintiff.
This position of defendant makes it imperative that we examine the contract.
It will be noted that the first provision of the contract was a statement that the bank owned the land. The contract then stated that one Patterson and R. A. Hyland had advanced the sum of $22,000 necessary in charging this land out of the assets of the bank. The contract then provided that a warranty deed should be executed to each stockholder for an undivided interest in the land in such proportion as the shares of stock owned by the stockholder bore to the 100 shares of the capital stock of the bank.
The contract then provided that the stockholders agreed to make settlement with Patterson and Hyland in such proportion as the shares of stock owned by the stockholder bears to the 100 shares of capital stock of the bank.
The contract then provided that the land should be sold at any time and at a price a majority of the stockholders should agree upon.
It will be noted the record discloses that the land was sold at a price and at a time that was agreed upon by all the stockholders except defendant. The only detail of the contract that was not carried out was that instead of the bank conveying the land to the stockholders and then the stockholders conveying it to the final purchaser it was conveyed directly by the bank to the final purchaser. We fail to see where defendant was injured by that circumstance. We will examine the facts and circumstances surrounding the execution of a contract when a question is raised as to its meaning or interpretation.
It will be noted that following the provision in the contract about the execution of the deed appeared the provision about the stockholders making settlement with Hyland and Patterson.
When this provision is examined in connection with other parts of the contract it becomes plain that it was the intention of all the parties that the men who advanced the money should be reimbursed after the land was sold for what they would be out of pocket on account of the money they advanced. It makes no difference that the land was sold to one of the stockholders. Defendant agreed that it should be sold at a time and at a price to be agreed upon by a majority of the stockholders. There is no hint of fraud in this record. This being the case, we conclude that defendant took too narrow a view of the contract when she argued that it should be treated as a contract-for'the sale of real property which plaintiff did not own. In reality it was a contract wherein defendant agreed to pay plaintiff her share of what he would lose on account of ad vancing money of which defendant, along with others, received the benefit. Since we have reached this conclusion, it follows that the trial court erred in sustaining the demurrer of defendant to the evidence of plaintiff.
The judgment of the trial court is reversed with directions to grant plaintiff a new trial.
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The opinion of the court was delivered by
Smith, J.:
This was an action brought by a landlord to recover rent from one he claimed bought the crop raised on the rented premises. .Plaintiffs claimed to have a lien for'rent under R. S. 67-524 and 67-526. Judgment was for defendants. Plaintiffs appeal.
The petition alleged that one Griesa occupied premises owned by F. H. Kennedy -as a tenant from year to year at a rental that was fixed each year; that for the years 1930, 1931 and 1932 the rental agreed upon was not paid; that this amounted to $1,604.63; that about August 24, 1931, Griesa gave the defendants a pretended agreement conveying all the growing crops on the land to defendants; that during the fall and winter of 1931 and 1932 he sold the crops grown on the land during those years to defendants to an amount in excess of the amount due plaintiffs. The petition further alleged that the growing crops consisted of ornamental trees, shrubs, privet, fruit trees and other plants, trees and shrubs in the nature of what is generally called nursery stock; that defendants took possession of the stock and sold it with notice of the landlord’s lien of plaintiffs; and that defendants had not paid to Griesa or plaintiffs any part of the money received for the sale of the crops mentioned, but had converted it to their own use. The petition prayed for a judgment against defendants in the amount due them for rent on account of the tenancy of Griesa.
Defendant Spalding answered, admitting that on August 24,1931, Griesa executed a pretended assignment; that the assignment was executed by Griesa of his own volition and not at the request of defendants; and that he did not at any time take possession of any property described in the inventory. The answer then contained a general denial of the allegations of the petition. The defendant, the First National Bank, answered, admitting Griesa may have executed the assignment, but the answer alleged the bank was not a party to the assignment other than being a creditor of Griesa; that the assignment did not at any time become operative, and that Spalding did not make an inventory nor take possession of the personal property described in the assignment and did not notify the creditors of Griesa of the assignment. The answer then contained a general denial.
The case was tried before the court without a jury. No findings 'of fact were made, but the judgment of the court in favor of defendants amounts to a finding in favor of defendants on every disputed issue of fact. One of these disputed issues of fact was that defendants ever actually took possession of the stock of Griesa under the assignment and, in reality, that the assignment ever became effective. No good end would be served by detailing the evidence here, but there is ample evidence in this record to justify a finding that neither defendant ever took possession of the stock or that the assignment ever was put into effect. A finding of fact necessarily embraced in the general judgment rendered by the trial court will not be disturbed in this court if there is some evidence to sustain it. (See Stratton v. Hawks, 43 Kan. 538, 23 Pac. 591; Conley v. House, 71 Kan. 883, 81 Pac. 1131.)
There is further reason why the court is correct in its decision. In order for the plaintiffs to recover it was incumbent on them to show that the property which it is claimed was purchased by defendants came under the provisions of R. S. 67-524 and R. S. 67-526. The former section provides as follows:
“Any rent due for farming land shall be a lien on the crop growing or made on the premises. Such lien may be enforced by action and attachment therein, as hereinafter provided.”
The latter reads as follows:
“The person entitled to the rent may recover from the purchaser of the crop, or any part thereof, with notice of the lien the value of the crop purchased, to the extent of the rent due and damages.”
There was ample evidence that the property claimed to have been sold to defendants was all at least two years old. There were fruit trees, ornamental trees and shrubs. The question is, Is such property “crops” within the meaning of the above statutes? The word “crops” is defined in 17 C. J. 378 as follows:
“The word ‘crops,’ in its more general signification, means all products of the soil that are grown and raised annually and gathered during a single season. In this sense the term includes both frucLus industríales and fructus naturales. The word is also used, however, in a more restricted sense, as synonymous with fructus industriales or emblements.”
It will be noted that the above definition speaks of all products of the soil that are grown and raised annually and during a single season.
In Goodrich v. Stevens, 5 Lans. (N. Y.) 230, 231, the court said: “a crop is, primarily, some product of the soil gathered during a single year.” The word is of ancient use. Its etymology appears to be from the Saxon “crop” or “cropp.” This word signified a cluster of ears of corn or grapes. Another derivation is from the Welsh “cropiad.” This meant a gathering or taking hold of. (See Cottle v. Spitzer, 65 Cal. 456, 4 Pac. 435.) It is from this derivation that the word has been held to mean only products after they have been severed from the soil. At times a distinction has been drawn between fructus industriales and fructus naturales. Our legislature, however, intended the word to cover both these when the statute under consideration was enacted. Thus what is meant is products of the soil, such as corn, wheat and similar products which must be planted each year, as well as fruits and berries and like products which need not be planted each year but which must be harvested annually. Throughout all the authorities, however, the holding is uniform from the earliest times to now that “crop” means a product grown and raised annually and gathered during a single season. With such a universal definition being given the word, we conclude that such was the definition intended by the legislature when our statute was enacted. Having reached this conclusion, we will consider how it applies to this case. The record discloses that the nursery stock, which it is charged defendants bought, was all composed of trees and shrubs at least two years old and a large part of it was three years old. None of it would come under the definition of a product of the soil raised annually or gathered within a single year. It seems clear that such stock was not “crops” as that word is used in our statute.
There is another element in this record which offers ample ground for giving a judgment for the defendants. The record discloses there was nursery stock handled by Spalding from land other than that from the land owned by plaintiffs, also there was some stock brought from other places by Griesa and held for the trade. The record is not clear as to how much of this stock there was, but there is so much evidence as to such a situation that this court cannot say it was not that fact which caused the trial court to give judgment for defendants.
There does not appear to be any error in the record and the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This'is an appeal by respondent and its insurance carrier from a judgment rendered in a compensation case, affirming the award granted the widow of a deceased night watchman who was killed while crossing a street which ran in front of the property he was watching for the respondent.
There is no question about his being an employee of the respondent at the time he was killed, nor that he was working under dual employment and not joint employment, the other employer not being a party to the action.
The appellants present the questions involved in the appeal under the following three headings:
“1. The court erred at the trial in affirming the findings of fact and con elusion of law and the award of the compensation returned by the workmen’s compensation commissioner. The evidence discloses that the deceased was remotely employed from the principal place of business; that there was no joint employment of the deceased; and that only by dealing in independent presumptions can it be said that the deceased was injured while in respondent appellant’s employ.
“2. There was no joint employment of the deceased by respondent company.
“3. Under the law, deceased was injured and killed and his death occasioned by an accident that did not 'arise out of and in the course of his employment’ with respondent.”
The evidence shows that the respondent was a Ford dealer with its principal place of business five miles from the place where the accident occurred; that in its business it did repair work on automobiles and used power machinery to do such repair work and had employed five or more workmen for more than one month prior to the accident, but not all the employees were engaged in the mechanical or machine work or any part of the hazardous part of the business. Other employees were engaged as salesmen and watchmen. There was no evidence that the respondent had ever filed an election not to operate under the workmen’s compensation law.
In addition to the principal place of business, the respondent maintained a used-car lot at Seventh and Tauromee streets in Kansas City, Kan., to which it took its used cars to be stored and put on display for sale. The deceased was engaged by the respondent as a night watchman at the used-car lot. Two salesmen were at the lot during the day to care for the cars and to make sales and exchanges. There was no specifically hazardous work conducted at the used-car lot.
The deceased was employed by the respondent to watch this used-car lot at night for the sum of $6 per week. He was to visit and inspect the lot two or three times every hour, beginning at eight p. m. and ending at eight a. m. He was also employed by the Davidson company, which had a similar used-car lot just across Seventh street, and he had been for several months prior to his engagement by the respondent serving the Davidson company as night watchman of its used-car lot at a salary of $5 per week.
There was a shanty or house on the Davidson lot where the deceased usually stayed during the night in cold weather, this accident occurring on February 21, 1935. The evidence shows that he usually made a trip from the shanty on the Davidson lot around the three sides thereof, and from the south end at Seventh street he crossed over to the respondent’s lot and went around it on the three sides and back to Seventh street, and then across the street to the shanty or house on the Davidson lot.
No witness saw the accident. The deceased was found dead on the street at about 5:30 in the morning between the center line and west curbing, with his head to the south, his right leg broken about seven inches above the knee, some broken ribs, skull fractured and other injuries. The right shoulder was out of place. The injuries to the face and head were on the left side. Blood marks on the pavement and a comb and little mirror were found near the body, and his hat was about twenty-five feet north of the body and about four feet from the west curbing. The respondent’s lot was on the west side of the street.
The evidence shows that the respondent knew that the deceased was the night watchman for the Davidson people and watched their used-car lot. They also knew that the deceased stayed in the shanty or house on the Davidson lot across the street from the respondent’s lot when he was not making his trips around the lots, and this dual employment was satisfactory to the officers of the respondent company.
The commissioner after hearing the testimony gave an extended opinion in writing in which he made findings of fact and applied the law to the same, and followed the opinion with an award of $1,400 for the widow. After the consideration of the case in the district court, upon the appeal from the commissioner’s award, the district judge made the following findings as to facts, and concluded by applying the law thereto and affirmed the award of the commissioner:
“The deceased in this case was engaged at) the time of the accident (which it is agreed was the cause of death) in dual employment for Davidson Brothers and the Yeamans Motor Company as a night watchman and the findings of the commissioner were from the evidence in the transcript that the deceased met) with the accident while he was crossing Seventh street between 'two vacant lots used for sales of second-hand motor cars. . . . The deceased was in the line of duty for'which he was employed and was being paid for his services at the time of the accident, and, therefore (in the court’s opinion), was within the provisions of the act.”
Under our limited jurisdiction in compensation cases as to the facts, we find there is sufficient substantial evidence to support the findings of the trial court which adopted the findings of the commissioner.
Appellants direct attention first to the remote connection of the deceased with the principal place of business of the respondent and claim that only by dealing in independent presumptions can it be said that the deceased was injured while in respondent’s employ. It does not seem to be the distance between the repair shop of the respondent and the sales lot upon which appellants rely, as much as the lack of anything but presumptions that connect the deceased with the business of the respondent at the tirhe he was killed. It was held in the compensation case of Supica v. Armour Co., 131 Kan. 756, 293 Pac. 483, that—
“Circumstantial evidence may be used to establish the claim, and it is not necessary-that the circumstantial evidence' should rise to that degree of certainty as to exclude every reasonable conclusion other than that found by the trial court.” (Syl. If 2.)
This was a case where a night watchman was killed by falling through the roof on a train shed, and the respondent insisted that in the absence of direct evidence that he was acting in the course of his employment the respondent could not be held. This ruling was approved and followed in the case of Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820, where the workman at a coal chute frequently went to the depot or roundhouse for information as to the approaching of another engine, and his body was found a few minutes after the arrival of a train on one of the tracks he was crossing.
In Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190, a workman for a telephone company had to go from place to place to charge batteries and occasionally to assist linemen along the highways. While going in an automobile with a superior officer he broke his arm in cranking the automobile, and it was held that — •
“. . . it does not defeat an injured workman’s claim to compensation that his particular injury was not caused by some hazard peculiar to such employment; it is sufficient if it was incidental to such employment.” (Syl. H 3.)
The same rule was applied in Pegg v. Postal Telegraph-Cable Co., 129 Kan. 413, 283 Pac. 58, to a messenger boy injured while riding his bicycle to deliver a message by being struck by an automobile, where it was not contended that his part of the business was hazardous, but it was held that the injury was incidental to such employment. '
In the opinion in the case of Smith v. Boiler Works Co., 104 Kan. 591, 180 Pac. 259, it was said:
“The deceased workman was night watchman in a boiler factory, and was killed by burglars while in the performance of his duties. It is said the hazard was not one which inhered in or was peculiarly incident to operation of a boiler manufacturing plant, and consequently, that the injury did not arise out of the employment.
“A fair statement of the rule under the rather limited statute of this state is that the injury must result from some danger peculiar to the hazardous character of the employment. This does not mean, however, that in a factory classified as extra hazardous because of the' use of dangerous machinery, none but machine operators or employees working in proximity to machinery may have compensation. Regarding for the moment the operating of machinery as the acme of the employment, all that combines to make it such, everything integrated with it essential to effective functioning — other conditions being fulfilled — is included in the hazard.” (p. 593.)
In the case of Phillips v. Kansas City, L. & W. Rly. Co., 126 Kan. 133, 267 Pac. 4, the deceased, while employed by a railroad company as ticket agent and station keeper, was fatally injured by blows on the head inflicted by an unknown person, and the evidence was held sufficient to support a finding that the injury arose out of the employment.
In Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536, a traveling salesman for a packing company several miles from the packing plant came in contact with an electric wire of high voltage, and it was said that it could not be held that there was no causal connection between the employment and the injury.
Both parties refer to the familiar case of McCormick v. Kansas City, 127 Kan. 255, 273 Pac. 471, where the city was running an industrial plant furnishing light, heat and power in the exercise of its proprietary functions, and the city officers occupied offices in the city hall, which was heated by a nearby boiler plant, and the One in charge of such plant was accidentally injured. In a compensation proceeding it was held:
“The work he was doing was so closely related and incidental to the proprietary business carried on Joy the water and light department of the city as to be a part of it, and that plaintiff is entitled to compensation, although the heat furnished for the city hall was provided in part for the benefit of other officers and employees exercising the governmental functions of the city.” (Syl.)
In this last-mentioned case and several others above cited, the workman was not injured on the premises where the hazardous work was being conducted.
Along the line applicable to the facts herein, it is said in 71 C. J. 752:
“Within the general rule governing ‘street accidents,’ where the work of an employee requires that he be in the public streets or on the public highways harm which results to such employee from the presence or operation of vehicles in the streets may constitute an accident arising out of and in the course of his employment, although compensation may be denied where there is no causal connection between the accident and the employment.”
Here the respondent knew that the deceased was watching the lot across the street and occupying the shanty or house across the street, and in order to comply with the agreement to inspect the respondent’s sales lot two or three times every hour, to cross the street would not only be incidental to the performance of his work but necessary thereto.
The inference or presumption that the deceased was going west to the south corner of the lot of the respondent and was looking after and at the lot of the respondent when the accident occurred is strong and .natural and is based upon evidence of his custom and habit in making the rounds by going that way. It is also reasonable and natural that he ceased looking at and after the Davidson lot, for the time being, when he commenced to cross the street. Besides the broken leg, marks on the clothes and other evidence of the accident are very convincing that he was going west toward the lot of the respondent as usual.
The next point raised by the appellants is that there was no joint employment. Both sides agree on this question of fact that the employment of the deceased was not joint but dual. He was not serving two masters at the same time, but alternately, and one at a time. It is said in 1 Schneider on Workmen’s Compensation (2d ed.):
“The subject of dual employers, employments, and business enterprises is as a rule not covered by specific provisions in the acts and the few decisions relating thereto are not entirely in accord. . . . The fact that one is employed in a dual capacity by the defendant and another does not make him any the less an employee of the defendant. . . .” (pp. 324, 325.)
The text then cites an instance of a delivery man engaged by two employers to deliver packages and had delivered all the packages belonging to A and was on his way to deliver a package belonging to B when he .was injured. B wag held liable. The text also cites an incident of a night watchman who had contracts with six independent concerns to act as watchman, where he was held to be an employee of each of them and could recover compensation from the one on whose premises he was injured. (See Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 Pac. 491; Murphy Supply Co. v. In dustrial Comm., 206 Wis. 210, 239 N. W. 420; and Bamberger Electric R. Co. v. Industrial Com., 59 Utah 257, 203 Pac. 345.)
Appellants upon the third question involved cite our statute, R. S. 1933 Supp. 44-508, on the meaning of the term “arising out of and in the course of employment,”- as excluding those accidents which occur while the workman is on his way to assume the duties of his employment and on his return therefrom, and decisions in support thereof which we think would be applicable in this case if the work and duties of the deceased did not begin until he reached the corner of defendants' lot. If the workman had been erecting a fence on the lot, that theory might apply, but the duties of the deceased were watching the lot, which would begin when he came in view of it and when he left the other lot across the street.
Appellants cite Alvarado v. Rock Crusher Co., 109 Kan. 192, 197 Pac. 1091, where the workman quit work in a quarry on account of rain and went to a tent 150 yards from the quarry and was there injured; also cite the case of Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174, where the workman’s sole duty was to oil machinery at night in an electric power house, but he left this part of the plant and went into another room where he had no business whatever and was there injured, and of course in both these cases it-was held that the injuries did not arise out of and in the course of the employment.
The case of Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, was where the workman was helping with a ditching machine, but thought his foreman’s automobile would be in danger, where it was parked, not from the ditching work but from the approaching of a truck heavily loaded with timbers, and he attempted to- save the automobile by removing it across a railroad track and was killed in being struck by a train.
The case of Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542, was where the workman for an oil company, in a little town of the company, was employed to take care of the horse barn and “was provided with a team and wagon, and with these he followed a regular route laid out for him, going through the alleys and about town gathering waste paper and trash.” In a rain and windstorm that occurred, he took the team to a garage which blew down and injured him. It was held it did not arise out of his employment.
In the case of Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70, also cited by appellants, a similar holding was made in a matter of a progressive impairment of health resulting in paralysis arising from the cranking of a car.
The facts and circumstances in these and many other cases in this connection are, we think, very different from those in the case at bar, and we have no hesitancy in concluding, as did the trial court, supported by the many decisions cited in the earlier part of this opinion, that the injury and death in this case did arise out of and in the course of the employment of the deceased.
The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This action involves the right of a daughter to recover compensation from her mother’s estate for services rendered to the mother during her lifetime.
The mother died April 26, 1933. The claim filed in the probate court was disallowed. An appeal was perfected to the district court, and a demurrer was there sustained to the evidence. It reads:
“Under the decision in the ease of Heine versus First Trust Company, 141 Kan. 370, and other decisions of the supreme court, the court finds that the demurrer should be sustained; that no contract has been proven to the extent required by the decisions, and the demurrer will be generally sustained.”
From that ruling claimant appeals. The claim filed, reads:
“364 weeks of labor at $25 per week.................................. $9,100
Claimant began working for deceased on or about December 1, 1925, and worked for deceased until about September 12, 1932, under an agreement that claimant would be paid a reasonable wage at the death of Maria Johnson, which occurred April 26, 1932.
Credit by payment.............................................. 300
Balance due............................................... 8,800”
We deem it unnecessary to decide whether the evidence proved an enforceable contract. Assuming, without deciding, that a valid contract was established, the evidence failed to establish its breach.
Claimant testified concerning statements she heard her mother make to others concerning the alleged contract. She did not relate any conversation she had with the deceased. For the purpose of testifying to a conversation heard,.and in which'she did not participate, claimant was a competent witness. (Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748; Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062; Page v. Sawyer, 101 Kan. 612, 168 Pac. 878; Bank v. Abbott, 104 Kan. 344, 179 Pac. 326; Sharp v. Losee, 109 Kan. 211, 199 Pac. 94.)
The total effect of the testimony was, claimant was to be compensated out of her mother’s estate. A few extracts from the testimony of claimant and from a few of her witnesses will suffice. They characterize the general nature of the evidence offered in her behalf. Claimant testified:
“It was not at my request that I went to live with my mother. I talked to J. K. Johnson, my mother’s husband, shortly before I went to their home with reference to going to the home. There were four (4) of us present at that time; my mother, Mr. Johnson, my fiance and myself. Johnson said: ‘Effie, aren’t you ever going to make up your mind to come down home with us?’ and before I could answer my mother said: ‘Johnson, I have asked Effie not to get married, and take care of me as long as I live, and if she goes down home with me and takes care of me I will pay her and pay her with a lump sum out of my estate that will do her some good.’ ” (Italics inserted.)
“I heard my mother say to Johnson that Effie was to be paid well for her services and that I should be paid in a lump sum so it would do me some good out of her estate when she was through with it.” (Italics inserted.)
“She told Robert (claimant’s fiancé), that I would be paid well if I came down and took care of her and that I would be paid out of her estate.” (Italics inserted.) .
“I recall hearing a conversation between my mother and Mrs. McCabe (Robert’s mother). My mother and I were returning from a trip to South Dakota, and I stopped on the way home in front of Mrs. McCabe’s house. She came out and remarked to my mother how well she was looking and said: ‘You sure have a jewel.in .Effie,’.and mama said: ‘Effie shall be well paid and taken care of for all she has done for me. She has sacrificed all her life.’ ”
Robert.McCabe testified:
“Mr. Johnson said, ‘Effie, if you come down and take care of your mother I will pay you $15 per week,’ and Mrs. Johnson spoke up and said, ‘And Effie, if:-you will stay single and not get married then I will see that you are well paid when I am dead and gone from my estate/ ” (Italics inserted.)
Mrs.- Nannie T. McCabe testified that claimant’s mother had told her—
“She was going to see that Effie was well paid for what she had done for her. . . . That Effie was to be paid when she was through and when she was done with the property.”
Mrs. Lloyd Cook testified she heard claimant’s mother say:
“When I am gone Effie is going to be amply repaid for all that she has done for me.”
Mrs. C. M. Love testified:
“I heard Mrs. Johnson speak of Effie taking care of her and she said Effie would be well paid for it sometime. I heard her speak of it several times and I suppose it was about between 1929 to 1931. I don’t remember whether Mrs. Johnson fixed any time or not that Effie would receive the pay.”
This evidence clearly discloses claimant was to be compensated out of her mother’s estate. Claimant testified, in July, 1930, she took her mother to a lawyer where she made a new will. She stated, all she knew about the will was what her mother’s attorney told her. Claimant did not introduce the will. She further testified she signed the petition for the probate of that will.
The burden rested on claimant to prove the breach of the alleged contract. The testimony shows she was to be paid out of her mother’s estate. The only evidence remotely touching the subject of a breach of the contract was claimant’s testimony, “That she has received nothing from her mother’s estate.” That is no evidence the will did not provide adequate compensation for services rendered. Without affirmative evidence we cannot assume the will failed to make the provision to which claimant says she is entitled. Nor does this testimony prove she would not receive full compensation under the law of descent and distribution. There is no evidence that at the time of the trial a final order of distribution had been made in her mother’s estate. All the evidence disclosed was that she had not yet obtained possession of the compensation claimed. Assuming the evidence established an enforceable contract, it did not disclose a breach of the alleged contract. The judgment must therefore be affirmed. It is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
This is an original action in the nature of quo warranto brought in the name of the state, on the relation of the attorney general, for a declaratory judgment, and seeking to have adjudged illegal a special election held in Allen county at the general election on November 6, 1934, at which there was attempted to be submitted to the voters of Allen county the question of the adoption of the county road unit system in said county, and ousting the board of county commissioners of Allen county from any privilege, franchise, right or jurisdiction over the township roads in the county of Allen, the road funds, road and bridge funds and special motor-vehicle-tax funds of all of the townships in said county of Allen.
The parties have submitted the action upon issues joined by the pleadings and an agreed statement of facts. The agreed facts are lengthy and are appended to the opinion and made a part hereof.
Plaintiff first contends the election was illegal, for the reason the county clerk of Allen county failed to give, any notice thereof in the manner provided by law.
Statutes pertaining to the county road unit system in effect in 1934, when these proceedings occurred, were R. S. 1933 Supp. 68-516, 68-516a, 68-517 and 68-518. No complaint is made relative to any failure to comply with the initiatory procedure for the adoption of a county road unit system prescribed by R. S. 1933 Supp. 68-516. That statute concludes with the requirement that the board of county commissioners shall submit the question of the adoption of such system to an election within the county. Neither it nor any other statute pertaining to the subject prescribes the nature or length of notice for such election. Plaintiff urges, although this election was held in conjunction with the 1934 general election, it was nevertheless a special election and an official ten days’ notice was required as provided by R. S. 25-105, which reads:
“It shall be the duty of the county clerk, and he is hereby required, to give public notice by publication in the official county paper, at least fifteen days before the holding of any election, except as otherwise provided by law, of the time of holding such election, and the officers at that time to be chosen, except in the case of special elections, when ten days’ notice shall be given; if no official county paper be published in such county the notice shall be published in some paper having circulation in such county.”
Plaintiff insists if that statute is not applicable as to notice required for this election, then the county road unit system law is unconstitutional. This contention is grounded on the theory there must be a specific provision for notice of an election. The difficulty with that contention is every law providing for an election necessarily implies the! giving of a reasonable official notice. As stated, the law required the county commissioners to submit the question involved to the electors. The giving of notice of the election was therefore implied. In 59 C. J. 973 the rule is stated thus:
"That which is implied in a statute is as much a part of it as that which is expressed. A statutory grant of a power or right carries with it, by implication, everything necessary to carry out the power or right and make it effectual and complete, but powers specifically conferred cannot be extended by implication,”
See Gilbert v. Craddock, 67 Kan. 346, 72 Pac. 869; Tatlow v. Bacon, 101 Kan. 26, 165 Pac. 835.
The failure to provide for notice does not render the road law itself unconstitutional. In the Tatlow case this court- said:
"It has already been determined that a statute is not invalid merely by reason of the fact that it does not expressly provide for notice and hearing. It may be implied by the courts unless the language of the statute excludes the theory that notice and hearing are necessary. (Gilmore, County Clerk v. Hentig, 33 Kan. 156, 5 Pac. 781; Railroad Co. v. Abilene, 78 Kan. 820, 98 Pac. 224.)” (p. 28.)
It therefore follows that although R. S. 25-105 may not be applicable with reference to the necessary notice for this election, the county road unit system law is not therefore unconstitutional. Defendants contend the statutes pertaining to the unit system of county roads and R. S. 25-105 are not in pari materia. They insist R. S. 25-105 has no application, as it applies to political elections, that is, to the election of public officials. We do not deem it imperative that we decide whether, under the circumstances of this case, it was necessary to give notice of the election in conformity with the provisions of R. S. 25-105. The question here is, Was a reasonable official notice given to the voters of Allen county advising them of the date and issue to be decided at this election?
Defendants assert the question of nature and length of notice rested in the discretion of the county commissioners and that they did not abuse their-discretion in this respect. The answer to the first part of this contention is, discretion of the commissioners was not exercised in the premises. They passed the matter of notice entirely to the county clerk. The pertinent portion of the resolution adopted by the commissioners, reads:
“The county clerk of Allen county is hereby directed to take all steps necessary to submit said question to the electors of said county at the next general election.”
The nature of the notice relied upon by defendants is contained in paragraph six of the agreed facts. Subparagraphs (a) and (b) of paragraph six deal with procedural steps prior to the election. They are not pertinent to and cannot be substituted for notice of an election. Subparagraph (c) deals with editorials published on the front page of the Iola Daily Register, a newspaper in Allen county. Editorials in a newspaper are not an official notice of an election. Sub-paragraph (d) pertains to printed placards conspicuously posted at voting stations in each precinct. They contained a review of the initiatory procedure prior to the election relative to petitions for and against the adoption of the county road unit system and the resolution of the commissioners which directed the county clerk to take all necessary steps to submit the question at the next general election. Thq contents of this placard were printed below another placard, which last placard dealt with the proposed amendment to the constitution relative to the repeal of the prohibition amendment. We do not mean to insinuate that the road proposition was deliberately concealed by this arrangement of the placard. We do think, however, the portion of the placard which dealt with the road system served little, if any, notice of an impending election on the subject of a new road system for Allen county. The voters would normally observe the large heading at the top of the placard which dealt with the prohibition amendment and naturally assume the entire placard dealt with the latter subject.
The twenty-first paragraph of the agreed statement admits the general election notice was given in the manner provided by law but that such notice contained no reference to the submission of the county road unit system. It is clear no official notice was published in the official county paper or in any other paper with regard to the road election. True, there was naturally much discussion in connection with the petitions favoring and opposing the adoption of the new system. The front-page newspaper editorials may have caused more comment and discussion than an official announcement would have elicited. We cannot, however, substitute such unofficial acts for an official announcement which is essential to all elections. Voters are presumed to know the date of general elections, as they are fixed by statute. This is not true of special elections. As to the latter, the voter expects and has the right to receive official notice of the date and issues to be submitted. For this reason it is the general rule, and this court has frequently held, notice prescribing for special elections is mandatory. (State, ex rel., v. Echols, 41 Kan. 1, 20 Pac. 523; Rice v. Robson, 83 Kan. 252, 111 Pac. 186; Chanute v. Davis, 85 Kan. 188, 116 Pac. 367; State, ex rel., v. Staley, 90 Kan. 624, 135 Pac. 602; Schur v. School Dist., 112 Kan. 421, 210 Pac. 1105; State, ex rel., v. Drainage District, 116 Kan. 291, 226 Pac. 478; see, also, 20 C. J. 95, 96; 9 R. C. L. 990-992.)
While the county road unit system statutes prescribed no definite notice for the election, a reasonable official notice is implied. It was not given and the election was therefore not valid. Having reached this conclusion, it is unnecessary to treat the question raised by plaintiff as to the sufficiency of the vote.
Defendants contend if the notice was insufficient the voters waived such notice by a large participation in the election. The contention is not sound. It requires no lengthy treatment. One fact will suffice to disclose its fallacy. 1,348 electors who voted at the general election did not vote on the road plan. It was not within the power of the electors who voted to waive necessity for legal notice on behalf of those who did not vote. It is clear if those who did not vote had voted against the system it would have been defeated.
While we cannot approve the lack of official notice for the election, there is presented to this court a very vital and practical question of public interest. Of the 7,311 votes cast on the question, 3,960 voters favored and 3,351 voters opposed the adoption of the new system. The county commissioners are at least de facto officers in relation to the present management and operation of the county road system in Allen county. Under all the circumstances, would the ouster of the commissioners from the exercise of such de facto powers serve any good end or purpose? This is an original action in quo warranto. The question is in a large measure addressed to the sound discretion of this court. State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828; Tarbox v. Sughrue, 36 Kan. 225, 12 Pac. 935; Weston v. Lane, 40 Kan. 479, 20 Pac. 260; State, ex rel., v. Sullivan, 44 Kan. 43, 23 Pac. 1054 (mandamus action); Horton v. Wilder, 48 Kan. 222, 29 Pac. 566; City of Topeka v. Water Co., 58 Kan. 349, 49 Pac. 79; State v. Bowden, 80 Kan. 49, 101 Pac. 654; Little v. Davis, 80 Kan. 777, 104 Pac. 560; State, ex rel., v. Stewart, 90 Kan. 778, 135 Pac. 1182; Albach v. Fraternal Aid Union, 100 Kan. 511, 164 Pac. 1065; State, ex rel., v. Cannon et al., 116 Kan. 325, 226 Pac. 777; State, ex rel., v. Wyandotte County, 117 Kan. 151, 230 Pac. 531; State, ex rel., v. Hutchinson Gas Co., 125 Kan. 337, 264 Pac. 44.
In Little v. Davis, supra, it was said:
“In at least two oases this court has recognized the principle that the judicial discretion which controls the action is broad enough to determine whether under all the circumstances the relief shall be granted.” (p. 782.) Citing Weston v. Lane, and Horton v. Wilder, both supra.
In State, ex rel., v. Stewart, it was held:
“The court, while having authority to render a judgment of ouster, is not compelled to do so, there being nothing to indicate that the condition or welfare of the district could be aided thereby.” (Syl. ¶ 3.)
In connection with an attempt to oust officers of a new school district, due to irregularities in the organization thereof, this court, in the case of State, ex rel., v. Cannon et al., supra, said:
“In quo warranto the court is vested with considerable discretion (Tarbox v. Sughrue, 36 Kan. 225, 12 Pac. 935; State v. Bowden, 80 Kan. 49, 101 Pac. 654), and in view of the appeals, the hearings had on the appeals, and the subsequent notices, hearings and decisions, we conclude that the lack of notice of the original action of the county superintendent is not a good ground for holding the organizations to be void or for the ouster of the officers of the new districts.” (p. 328.) (Italics inserted.)
Careful consideration must here be given to the agreed statement of facts. No useful purpose can be served by their restatement. An examination of them, and especially of facts contained in paragraphs thirteen to seventeen, inclusive, is essential. They disclose clearly the confusion, turmoil and some of the ultimate consequences which in all probability would result from the allowances of the remedy sought. The state has, of course, brought this action in good faith in order to have the present status of the road situation in Alien county definitely determined. Under the circumstances there existing this is commendable. In the view, however, which we take of the entire situation, we do not believe this court should, in the exercise of its discretion, employ the prerogatives of the extraordinary remedy of quo warranto. We are further inclined to this conclusion in view of the ready and effective remedy provided by R. S. 1933 Supp. 68-517. The voters of Allen county may themselves abandon this road system and return to the old system if they desire to do so, in accordance with the provisions of that statute.
Generally quo warranto will not lie where there is another plain and adequate remedy. (State, ex rel., v. Wilson; Tarbox v. Sughrue; City of Topeka v. Water Co., (mandamus action); State, ex rel., v. Wyandotte County; State, ex rel., v. Hutchinson Gas Co., all supra; and State v. Water Co., 63 Kan. 317, 65 Pac. 257; Yeager v. Aikman, 80 Kan. 656, 661, 103 Pac. 132.)
In the early case of State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828, it was held:
“In the present case there are several remedies, some of which at least, are adequate; . . . (5) there is also the remedy of removal by an election by the people every two years.” (Syl. ¶ 12.)
In the course of the opinion it was said:
“After an examination of the authorities, we have arrived at the conclusion that, as a general rule, a court having the power to exercise jurisdiction in quo warranto proceedings will not exercise its jurisdiction where some other plain and adequate remedy exists. This, we think, was always the law.” (p. 676.)
In the case of State, ex rel., v. Wyandotte County, 117 Kan. 151, 230 Pac. 531, this court said:
“Quo warranto is still 'an extraordinary remedy, and will not lie when other adequate remedy exists. (State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828.) Even although there be departures from legal limitations and standards, ouster does not mechanically follow. The court may take a broad view of motives, conduct, situations and circumstances, and of the ultimate consequences of application of the remedy, whether useless, beneficial or harmful.” (Citing cases.) (p. 159.)
In the case of State, ex rel., v. Hutchinson Gas Co., 125 Kan. 337, 264 Pac. 44, this court quoted with approval from the case of Albach v. Fraternal Aid Union, supra, as follows:
“ ‘In the facts alleged and the relief prayed for in this action the proceeding in effect is quo warranto. Except in most unusual cases, such an action can only be maintained in the name of the state by its proper legal representative —the attorney-general, or perhaps by the county attorney. And even if so maintained, the relief to be given is to some extent discretionary with the court. (City of Topeka v. Water Co., 58 Kan. 349, 353, 49 Pac. 79.) Where, as most likely in the case at bar, the result would be to wreck an institution that is doing a beneficial and humanitarian work notwithstanding some possible defects in its financial or economic structure, the state’s responsible legal representative should consider well whether such action should be instituted (State v. Bowden, 80 Kan. 49, 56, 57, 101 Pac. 654), and the court would consider with profound solicitude whether the remedy prayed for was not worse than the evil complained of.’ ” (p. 340.)
We need not and do not rest this decision solely on the ground another adequate remedy exists in the instant case. That fact, however, is entitled to consideration in determining whether we are warranted in exercising our discretion in favor of an action as drastic as ouster under all the circumstances of this case. In view of all of these considerations we are persuaded the remedy of quo warranto should be denied. It is so ordered.
AGREED FACTS
“First. That the defendant, the board of county commissioners of the county of Allen, is a body corporate and politic and, as such, exercises all of the rights and powers conferred upon it by the laws of the state of Kansas pertaining to counties and county commissioners. That Joe McKinley, H. V. Adams and W. L. Moon are the duly elected, qualified and acting county commissioners of Allen county, Kansas, and constitute the board of county commissioners of such county. That the defendant, C. A. Hubbard, is the duly elected, qualified and acting treasurer of Allen county, Kansas. That the defendant, Ralph Elarton, is the duly elected, qualified and acting county clerk of Allen county, Kansas.
“Second. That the board of county commissioners of the county of Allen did on the 2d day of October, 1933, pass a resolution adopting the provisions of the county road unit system and did cause to have published said resolution in the Iola Daily Register of Iola, Kansas, for three consecutive weeks, the first publication being on October 5, 1933. That said Iola Daily Register, Iola, Kansas, is now and had been for more than 52 weeks immediately prior to the first publication of said resolution, a daily newspaper continuously and uninterruptedly published at Iola and of general circulation in Allen county, Kansas, it being also the official county paper of said county.
“Third. That thereafter and within a period of ninety days after the date of the first publication of said resolution as aforesaid, there was filed with the county clerk of Allen county, Kansas, petitions signed by 2,780 qualified electors in said county of Allen, protesting the adoption of the provisions of the-county road unit system in Allen county, Kansas. That the signers of said petitions were more than twenty percent of the qualified electors in said county of Allen at the time of the filing of said petitions and at all times prior thereto and after the adoption of the aforesaid resolution.
“Fourth. That because of the protesting as aforesaid, the board of county commissioners of the county of Allen found that said protests were signed by more than twenty percent of the qualified electors of the said county of Allen, and said board did on the 10th day of January, 1934, at a regular day of the January session of the said board, pass a resolution submitting to the electors of Allen county, Kansas, the question of whether or not said county was to have the county road unit system as provided by law which was to be submitted at the next general election. A copy' of said resolution so passed by said board at said time is attached to the petition herein as a part thereof, and market ‘exhibit A.’
“Fifth. That no notice of the submission of the question of the county road unit system to the electors of Allen county at the general election held in November, 1934, was given under section 25-105, R. S. 1923, the defendants believing and claiming that that section of the statute does not apply to such an election.
“Sixth. That if the electors of Allen county did not waive notice of the submission of! said question to a vote of the electors at the general election held on November 6, 1934, then the defendants contend that said electors were legally and properly notified of the submission of said question at said elec tion by the following proceedings, which the defendants claim to be sufficient notice, but which claim the plaintiff denies, to wit:
“(a) That within ninety days after the first publication of said resolution on October 5, 1933, persons opposed to the adoption of said county road unit system circulated petitions among the electors of Allen county, Kansas, protesting the adoption of said system and asking that the question be submitted to the electors of Allen county for their decision at an election, which said petitions were signed by 2,780 of such electors.
“(b) That the said board of county commissioners, when the petitions protesting the adoption of said system were submitted to it, found said petitions to be sufficient to require the submission of said question to the electors of Allen county, and it was by said board resolved and ordered that said question be submitted to the electors of Allen county at the next general election, which election would be the general election held on November 6, 1934. That ssid resolution and order was at that time duly spread upon the commissioners’ journal. That the action of the said board of county commissioners was reported in the issue of the Iola Daily Register, Iola, Kansas, published January 13, 1934, said report of 'the action taken by said board being reported in the first column on the first page of said issue of the newspaper. A true and correct copy of the report of said action is exhibit A to the answer, which exhibit is hereby made a part hereof by reference.
“(c) That in the issue of the Iola Daily Register, Iola, Kansas, published on November 5, 1934, and delivered as stated in paragraph twentieth hereof, there was printed on the first page thereof, a long editorial regarding the county road unit system, and stating that the same was to be voted upon at the general election to be held on November 6, 1934. Exhibit B to the answer is a true and correct copy of said editorial and is'made a part hereof by reference.
“(d) That before the commencement of the said general election there were printed and posted at the voting place in each precinct, placards, each of which contained a copy of House concurrent resolution No. 14, passed at the special legislative session of 1933, and a copy of the resolution of the board of county commissioners of Allen county, Kansas, submitting to the electors at the said general election, the question of the county road unit system. That said placards were conspicuously posted in said voting places and remained posted there until the polls were closed on said election day. That said placards were twenty inches in length and twelve inches in width and easily readable. Exhibit C to the answer is a true and correct copy of the contents of said placard and said exhibit is made a part hereof by reference.
“Seventh. That pursuant to the provisions of law, the county clerk of Allen county, Kansas, before said election was held, properly delivered or caused to be delivered to the proper election officials in each voting precinct, a number of properly printed ballots, including ballots on the question of the adoption of the county road unit system, fully sufficient to meet the demands and needs of all the electors of each voting precinct, and that all of said ballots were in the possession of the said election officials in each voting precinct and ready and available for use at the time of the opening of the polls on said election day. That at said general election all the electors voting in the first ward in Iola, the second ward in La Harpe, in East Elm township, duly and properly received and voted ballots on the question of the county road unit system, except not to 'exceed 149 of said electors in the first ward in Iola, 108 of said electors in the second ward in La Harpe, and 35 of said electors in East Elm township, either did not receive ballots on said question or did not vote the ballots which they received to vote on said question. .That the number of said electors in each of the foregoing voting precincts which either did not receive ballots on said question or did not vote the ballots which they received to vote on said question, is arrived at by subtracting from the number o'f votes cast by said electors in each of said voting precincts for governor of the state of Kansas, the number of votes cast on said question, and the number remaining as a result of said process of subtraction, it is agreed, represents the number of said electors in each of said voting precincts which either did not receive ballots on said question, or did not vote the ballots which they received to vote on said question.
“Eighth. That at said general election 8,659 of the electors of Allen county, were present, voted, and participated therein. That said electors cast 7,311 votes for or against the question of the adoption of the county road unit system. That of said votes so cast 3,960 were for and 3,351 against the adoption of said county road unit system.
“Ninth. That the 8,659 electors of Allen county present, voting, and participating in said general election cast for all of the candidates for each of the following offices to be filled at said election the following number of votes:
State treasurer, unexpired term...................... 5,295 votes
State treasurer, regular term......................... 7,090 votes
County attorney.................................... 6,723 votes
Probate judge...................................... 6,244 votes
Coroner............................................ 6,144 votes
Clerk of the district court........................... 6,065 votes
That there was only one candidate for each of the offices of probate judge, coroner and clerk of the district court which were filled at said election and for which votes were cast as stated in this paragraph.
“Tenth. That the vote cast for secretary of state in recent general elections in Allen county, such as the 1934 general election, is as follows: 1934 election, 7,815 votes; 1932 ejection, 7,631 votes; 1930 election, 6,125 votes; 1928 election, 7,052 votes; 1926 election, 5,862 votes.
“The population of Allen county during the same period of time was as follows: 1934, 20,174; 1932, 20,256; 1930, 21,272; 1928, 22,774; 1926, 24,155.
“Eleventh. That the votes cast at said election on said question were properly canvassed, tabulated and recorded by the county commissioners and county clerk as provided by law. Thereafter, and on or about November 14, 1934, each township in Allen county, was notified by the county commissioners and county clerk of the adoption of said county road unit system at said election in the form as set out ini exhibit B to the petition, which exhibit is made a part hereof by reference.
“Twelfth. That on November 28, 1934, the various townships of Allen county not having complied with the order contained in the resolution of November 14, 1934, the said board of county commissioners did cause a written notice to be served upon the township boards of said townships, a copy of which notice is attached to the petition herein and marked ‘exhibit C’ and is made a part hereof by reference.
“Thirteenth. That the board of county commissioners of Allen county instructed the treasurer of Allen county not to pay over to.the township treasurers of said townships any moneys from the road and bridge funds of said townships collected or to be collected from levies made by said townships for such purposes or received by him from the special motor-vehicle-tax funds. The county treasurer acted accordingly. That the board of county commissioners has used said funds and also the funds paid to said board by certain townships as hereinafter stated and in the use thereof has abided the provisions of 68-516a, R. S. Supp. 1933, with reference to the use of such funds.
“Fourteenth. That there are twelve townships in Allen county. That the following townships have unqualifiedly delivered and turned over to the board of county commissioners their road machinery and equipment theretofore used by said townships in connection with their road work in their respective townships, to wit: Iola, Geneva, Marmaton and Elm townships.
“That the townships of Carlyle, Cottage Grove, Osage, Salem, Deer Creek and Logan have delivered and turned over to the board of county commissioners their road machinery and equipment theretofore used by said townships in connection with their road work in their respective townships with the restriction that the same be used only in the respective township delivering and turning over said equipment, and that said township designate the persons who are to operate said machinery pending the final determination of this question, •and that said machinery and road equipment have been accepted and used by the board of county commissioners on those conditions. That the townships of Elsmore and Humboldt have failed and refused to deliver and turn over to the board of county commissioners any of their road machinery and equipment.
“Fifteenth. That the townships of Cottage Grove, Osage, Geneva', Elm and Elsmore, by their township boards, have ordered delivered and turned over to the board of county commissioners of said county all their road and bridge funds and special motor-vehicle-tax funds.
“Sixteenth. That neither the 1936 budgets of the several townships in Allen county nor the tax levies made by them include sums or levies for road and bridge funds for maintenance and improvement of roads and bridges in their respective townships for 1936. That in its adopted budget for 1936, which was duly submitted to and approved by the state tax commission, as provided by law, Allen county budgeted $90,006 in its road fund and $62,255 in its bridge fund. However, the tax levy of Allen county for the road fund is .16751 mills per $100 assessed valuation, which, if all taxes levied are collected, will produce only $43,067.18 for the road fund; the tax levy of Allen county for the bridge fund is .08019 mills per $100 assessed valuation, which, if all taxes levied are collected, will produce only $20,617.02 for the bridge fund. Allen county may also reasonably expect $36,000 in motor-vehicle-tax funds..
“Seventeenth. That since about December 1, 1934, Allen county has been maintaining and improving the former township roads in said county, consisting of 764.25 miles of roads in addition to the 132 miles of county roads which it already had under its control. That said board of county commissioners is now and has been ever since about December 1, 1934, exercising authority and jurisdiction over all of the roads in said county except about 80 miles of state highways.
“Eighteenth. That on January 9, 1935, Humboldt township, in Allen county, as plaintiff, filed an action in the district court of Allen county, Kansas, against the same defendants as in this quo warranto proceedings. Said action is civil action No. 17,757, on the docket of said court. In that action said plaintiff sought to litigate the same issues involved in these proceedings. Issues were duly joined. The case was tried on June 17, 1935, and defendants' demurrer to plaintiff’s evidence was sustained. Plaintiff’s motion for a new trial was argued and overruled on June 18, 1935. On December 20, 1935, notice of appeal and journal entry of judgment were filed in the office of the clerk of this court, and said appeal is docketed as case No. 32,900 on the docket of this court.
“Nineteenth. That there are twenty-four counties in the state of Kansas which are now and have been for some time operating under the provisions of the county road unit system. Plaintiff admits the facts stated in this paragraph to be true, but objects to the same as being incompetent.
“Twentieth. That the issue of the Iola Daily Register, Iola, Kansas, published on November 5, 1934, was delivered to the subscribers in the cities of Iola, Humboldt, Gas City, La Harpe, Moran, Elsmore, Savonburg, Carlyle and Geneva on the same day, and that the. subscribers in the cities of Mildred, Bayard and Petrolia and on the rural routes did not receive their copies of said issue until on November 6, 1934, the following day.
“Twenty-first. That the proceedings in paragraph ‘sixth’ hereof, are the only proceedings claimed by the defendants to be sufficient notice of said election, there being no notice of the submission of the question of the county road, unit system in the general election notice, which general election notice was given in the manner provided by law.
“Twenty-second. That Allen county has not paid for any of the road machinery and equipment taken over by it from the townships, and plaintiff contends that the defendant board of county commissioners usurps its powers in taking over such property without paying for the same, while said board claims that it is not required to pay for the same when used in the township from which it is taken, and that if not practical to use said machinery and equipment in such township that it has the right to sell the same and use the proceeds realized therefrom for road work and improvement within the township.”
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents for review a ruling of the trial court on a question of misjoinder in an action to recover damages for injuries sustained on or adjacent to a public highway.
The pertinent facts were these: In Crawford county there is a public road which runs east and west, and which is designated U. S. highway No. 160 and also as state highway No. 12. About two miles west of Pittsburg it is intersected by county highway No. 8, which runs north and south. At the southwest corner of this intersection there is a filling station. Patrons enter the premises of 'the filling station by a driveway from the north and drive out on the east, or vice versa.
Sometime prior to July 15, 1933, the defendant state highway commission let a contract to their codefendant, Reed & Wheelock, partners, for the improvement of this federal and state highway, part of the work being the creation of a ditch on the south side of the road. This ditch was about 1% feet wide and 2 feet deep, and it cut across the driveway into the filling station.
About 9 p. m. on July 15, 1933, plaintiff was a passenger in the rumble seat of a coupé driven by one Borbort. He drove his car into the filling station from the county road on the east, and passed out over the driveway towards the north. His car ran into the ditch constructed on the south side of the federal and state highway and plaintiff sustained injuries.
In her petition she alleged negligence and breach of statutory duty as follows:
“That there were no lights, signals or barriers of any land or description on or about said ditch and nothing to warn travelers, more particularly this plaintiff, going into or coming out of said filling station of the presence of said ditch; that the said defendants were careless and negligent in causing said -ditch to be dug across said driveway and failing to erect signals or barriers of any kind or description to warn travelers of the presence of said ditch; that the presence of said ditch was, and the lack of warning signs was a defective and dangerous condition in said United States highway No. 160 and Kansas state highway No. 12; that the director of highways, the state highway engineer, and the foreman, patrolman, and other employees of the state highway commission having charge of the construction, maintenance and upkeep of said highway, had knowledge and notice of each and all of the aforesaid defects more than five (5) days prior to the 15th day of July, 1933.”
Elsewhere in her petition plaintiff characterized the construction of the ditch as a “defective condition of said highway.”
The two defendants lodged separate demurrers against the petition, principally on the ground that several causes of action were improperly joined. These demurrers were overruled, and the defendants appeal.
At the onset the defendants remind us that they do not at this time question the sufficiency of the petition to state a cause of action. Their only contention is that error inheres in the trial court’s ruling on the question of misjoinder of causes of action.
Assuming then, but not deciding, that a roadside ditch is a defect in the highway within the meaning of the statute, the duty of the state highway commission pertaining thereto was prescribed by statute, the pertinent substance of which is that any person who without contributing negligence sustains damage by reason of a defect in a state highway may recover damage against the state if it is also shown that any responsible officer or employee in charge of the construction or maintenance of the highway had five days’ notice of the defect prior to the time the damage was suffered. (R. S. 1933 Supp. 68-419.)
It should be apparent that the liability of the defendant commission is'statutory. It is not a common-law liability. Actual negligence of the defendant commission or of its responsible employee may appear in the alleged facts which constitute the cause of action stated against the commission, but negligence is not an essential element of the action which the statute creates against the commission.
On the other hand, the liability which plaintiff seeks to fasten on the defendant partners is based on their alleged negligence — that they were negligent in causing the ditch to be dug across the driveway into and out of the filling station and in failing to erect signals or barriers to warn travelers of the presence of the ditch. Counsel for appellee correctly remind us that all tortious acts for which an action will lie are not necessarily based on negligence; but plaintiff predicates this action against the defendant contractors on that ground.
In Elliott v. State Highway Comm., 138 Kan. 738, 28 P. 2d 960, cited by appellee, the state highway commission and a private corporation were joined as defendants in an action to subject them to liability where the liability of the one was based on the existence of a chuck hole in the highway and where the liability of the other was based on its maintenance of an exposed pipe line near by. Conceding that the cited case was analogous to the one at bar, no question of misjoinder was raised or decided. (R. S. 60-707; Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961; Minch v. Winters, 122 Kan. 533, 540, 253 Pac. 578.)
Appellee also cites the case of McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, where the action was founded on a tort committed by the concurrent wrongdoing of the city and an oil company, which resulted in the pollution of a stream. But the city’s liability was not based on breach of a statute, as in the case we are now considering.
This court has often said that the liability of the state, its counties and townships, for damages caused by a defect in a public road, is not founded on negligence but is based specifically and exclusively on the governing statute. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 345, 291 Pac. 762, and citations; Douglas v. State Highway Comm., 142 Kan. 222, 46 P. 2d 890, and citations.)
It seems to us that the pertinent code provisions make it comparatively simple to determine the present question of misjoinder. Those read:
“The plaintiff may unite several causes of action in the same petition. . . . But the causes of action so united must affect all the parties to the action . . .” (R. S. 60-601.)
“The defendant may demur to the petition . . . when it appears on its face . . . that several causes of action are improperly joined.” (R. S. 60-705.)
In view of these simple procedural rules of practice it must be apparent that plaintiff’s action against the highway commission for alleged breach of statutory duty and her action against the defendant partners for common-law negligence were improperly joined. In Bliss on Code Pleading, 2d ed., § 83, it is said:
“Persons are not jointly liable for a tort merely because they may have some connection with it, even if it may give a several cause of action against them. There must be a cooperation in fact; ‘there must be some community in the wrongdoing among the parties who are to be united as codefendants; the injury must be in some sense their joint work.’ Thus, a joint action will not lie against the separate owners of dogs who together have worried the plaintiff’s sheep; each owner is responsible only for the acts of his own dog. A subsequent assent will not make one a cotrespasser unless it was committed for his use, for there was no connection between the parties at the time of the trespass. It is held that where one owns a city lot, and has dug a hole, into which the plaintiff fell, the latter cannot unite the owner of the lot for digging and leaving open the hole and the city for neglect in respect to its streets, for there was no community in the wrong.”
See, also, 1 C. J. 1069,1070,1072,1073,1075; 1 R. C. L. 367, 368;. 1 R. C. L. Perm. Supp. 96.
The judgment is reversed, and the cause remanded with instructions to sustain defendants’ separate demurrers on the ground of misjoinder and for further proceedings not inconsistent herewith.
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The opinion of the court was delivered by
Smith, J.:
In this action the defendant was convicted of robbery in the first degree. After verdict of guilty the trial court sustained the defendant’s motion in arrest of judgment. The state appeals.
The ground upon which the trial court sustained the motion in arrest of judgment was that the information did not sufficiently allege the venue of the offense so as to confer jurisdiction on the court. The information was in the following form:
“In the District Court of Anderson County, Kansas
State of Kansas, Plaintiff, v. No. 1,180 Dale Lucas, Defendant.
information
State of Kansas, Anderson County, ss.
I, the undersigned county attorney of said county, in the name, by the authority, and on behalf of the state of Kansas, give information—
That on or about January 1, a.d., 1935, one Dale Lucas did then and there unlawfully, feloniously, forcibly and violently, against the will of F. T. Craig, and in the presence and from the person of F. T. Craig, take, steal, rob and carry away thirteen gallons of gasoline of the value of two dollars and two cents, and five dollars in currency, consisting of five one-dollar silver certificates and three dollars in silver coins consisting of half-dollar silver pieces and quarter-dollar silver pieces, lawful money of the United States, a more particular description of which this affiant is unable to give, property of said F. T. Craig; by putting then and there the said F. T. Craig in fear of some immediate injury to his person then and there with the intent unlawfully, feloniously, forcibly and violently, to permanently deprive him, the said F. T. Craig, of his property aforeindescribed, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Kansas. Merle Lottghridge, County Attorney.
VERIFICATION
State of Kansas, Anderson County, ss.
I do solemnly swear that I am the county attorney in and for the county of Anderson, state of Kansas. That the allegations set forth in the foregoing information are true and correct according to the best of my information and belief. So help me God. Merle Loughridge, County Attorney.
Subscribed and sworn to before me this 27th day of February, 1935.
(Seal.) Erma Miller, Clerk of the Dist. Court.”
The argument of appellee is that somewhere in the body of the information it should have recited that the alleged offense happened in Anderson county.
The reason for alleging in an information that an offense was committed in a certain place is an ancient one. At common law the word venue “signified the narrow neighborhood from which the jurors, as witnesses of the fact in issue, . . . must come for the trial of an action in the king’s court.” (67 C. J. 11.)
This court has heLd that a defendant was entitled under the constitution to be tried in the county where the offense is alleged to have been committed. (See In re Oberst, 133 Kan. 364, 299 Pac. 959.)
The place where the crime was committed must be alleged in the information or the rule laid down in the above case would be meaningless. There is no rule that it must be alleged in any particular language, however. The question we have is, Was the defendant able to learn from reading the information on file against him that he was charged with committing a crime in Anderson county? In order to determine this we will examine the information. The first words in the information are these: “In the District Court of Anderson County.” Defendant argues that these words are not any part of the charging portion of the information, but simply the title of the court where the prosecution was brought. The term is more than that, however, when considered in connection with what follows.
The next words of interest to us are “State of Kansas, Anderson County, ss.” Here again the name of Anderson county appears. But there is more than that. The words “Anderson county” are followed by the letters “ss.” Those letters mean “scilicet.” The use of this word in legal documents is to particularize and point out the application of what follows to what has gone before. (See Bouvier’s Law Dictionary, 3013.) The next words we see then are “I, the undersigned, county attorney of said county.” When read in connection with the words that just precede, these words mean “I, the undersigned, county attorney of Anderson county.” The next words explain the power and authority of the county attorney; that is, they explain that the county attorney is the proper officer to commence prosecution. The next words give the date when the offense is alleged to have been committed. Then follows the words “One Dale Lucas did then and there.” This means the date just given in the information and “there” refers back to the words “State of Kansas, Anderson County, ss.” When thus read it does not appear that there was any further necessity for describing or setting out the place where the offense was charged to have been committed. This was the rule followed in Guy v. State, 1 Kan. 448. That case held that where the name of the county was given in the margin of the information it was not required to be mentioned in the body thereof. To the same effect is the holding of this court in State v. Stiff, 117 Kan. 243, 234 Pac. 700. The information was substantially the same as the one we have here as far as giving the venue is concerned. When its sufficiency was challenged this court said:
“The information, after stating the court in which it was filed and that the county attorney was the county attorney of Cowley county, alleged that the defendant ‘then and there’ did the things charged. The information was then signed by the county attorney. The affidavit of the county attorney to the information was sworn to in Cowley county before the clerk of the district court. The defendant was not and could not have'been misled by the information. It completely charged the offense, but it may be that it defectively stated where the offense had been committed. That defect, if it were a defect, was a very technical one. It did not violate any substantial right of the defendant. A valid judgment could have been pronounced upon conviction under the first information.” (p. 249.)
To the same effect is The State of Iowa v. Reid, 20 Ia. 413; also, The State v. S. A. L., 77 Wis. 467.
Defendant cites and relies on an opinion by this court in the case of State v. Hinkle, 27 Kan. 308. The complaint in that case was about the same as the one we have here as far as charging the venue is concerned. The court held the complaint to be bad on that account. The case is distinguished from the case at bar, however. The offense in that case was that of selling and disposing of mortgaged personal property with the intent of defrauding the mortgagee thereon. The offense was one which required the performance of several distinct acts, any one of which could have been committed in a different county. What the holding of the court amounts to in that case is that the complaint be required to state in what county each act took place. We are not prepared to say that this court would reach the same conclusion reached in State v. Hinkle, supra, should that precise question be presented to us. We do not have that question. Suffice it to say that the passage of the years has not dealt kindly with technical questions of this sort.
The judgment of the trial court is reversed with directions to set aside the order sustaining the motion in arrest of judgment and proceed with the cause.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover an amount due on a certificate of insurance issued by a fraternal society on the life of Alice A. Parsons, of Dodge City. The named beneficiary was Louis E. Parsons, her husband.
Alice died on August 8, 1933, and Louis died three days later, on August 11, 1933.
Louis died testate, and the plaintiff as executor brought this action against the insurer, The Grand Lodge Degree of Honor, to collect the insurance. The Grand Lodge paid the money into court and was dismissed.
Charles L. Parsons, only son and sole heir of Louis, was impleaded and filed an answer and cross petition, in which he laid claim to the proceeds of the certificate of insurance on the ground that under the pertinent statute and the bylaws of the society the insurance money could not be used to pay the debts of Louis, and consequently the executor had no legal right to it.
The pleadings developed no dispute of fact. In an agreed statement of counsel for the litigants, the facts summarized as above were supplemented in part thus:
“. . . At the time of bis death, no proof of the death of Alice A. Parsons had been forwarded to the Grand Lodge Degree of Honor and no attempt had been made to collect the proceeds of the beneficiary certificate. Alice A. Parsons left no sons or daughters and, accordingly, L. E. Parsons was her sole heir at law.”
The trial court ruled that the plaintiff executor was entitled to collect the proceeds of the beneficiary certificate—
“. . . But that the proceeds of said certificate are not assets of the estate of L. E. Parsons, deceased, and are exempt funds which cannot be used for the payment of the debts of the deceased and that the proceeds of such certificate is' a special fund to be collected by the plaintiff and to be immediately paid to the surviving heirs at law of L. F. Parsons, deceased. The court' further finds that the defendant, Charles L. Parsons, is the only surviving heir at law of L. E. Parsons, deceased.”
Judgment was entered accordingly and the executor appeals, ob jecting particularly to so much of the judgment as directed what he should do with the money when he does collect it. He contends that he is accountable only to the probate court as to what disposition he should make of it; that the fact that by the statute and the bylaws of the society the money cannot be used to pay debts of the testator does not ipso facto make it conclusive that it will ultimately inure to the benefit of the sole heir of the testator; and that if it should eventually do so, it must be done under the supervision of the probate court — not in the first instance by order of the district court.
These contentions of the executor are well founded. It was the duty of the executor to collect this insurance. When he got his hands on it, it was his duty to report that fact to the probate court and ask its instructions as to the disposition of the fund. There is no reason to assume that the probate court will not follow the law in disposing of the money. The money is an asset of the testate estate of Louis F. Parsons; and if it may not be used to pay debts of the testator, nevertheless it will be the executor’s duty, under the supervision of the probate court, to disburse the money as the will of the testator, or the order of the probate court, may 'direct.
It follows that the judgment of the district court must be modified, and the cause is remanded with instructions to eliminate from its judgment so much thereof as assumes to direct the executor what he must do with the money paid into court by the defendant Grand Lodge. It is so ordered.
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Per Curiam:
The questions presented for decision in this appeal are similar to some that were involved and determined in Breedlove v. Wyandotte County Comm’rs, ante, p. 754, and upon the authority of that case the judgment herein is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff sued to recover a commission claimed to be due him under a parol contract with the defendants to purchasé pigs for them. Defendants denied the contract and alleged they and plaintiff were partners in the purchasing of pigs, and that the transactions resulted in a loss. These allegations were put in issue by reply. A jury trial resulted in a judgment for plaintiff. Defendants have appealed.
Appellants’ principal complaint here is that the trial court overruled their challenge for cause of the juror Olson. His voir dire examination disclosed that he was interested in an estate being administered in the probate court of the county, concerning which there was some controversy, and was also a party to an action then pending in the district court in which this action was being tried, and that in both of those matters his attorney was'Mr. Stavely, one of the attorneys for plaintiff in this action. In other respects the juror’s examination showed no reason to challenge him. As to this matter and to the effect it would have, or might have, upon him as a juror in this case, he was interrogated at length by counsel, and was also interrogated by the court. The court concluded the fact the attorney for plaintiff represented the juror in litigation would have no bearing upon his service as a juror in this case and denied defendants’ challenge for cause/ The voir dire examination of a juror is in the nature of a trial to the court of his qualifications to sit as a juror in the case. So far as the determination of those matters rests upon facts disclosed by the examination and determined by the court, this court will not disturb the trial court’s ruling in the absence of a showing that the court abused its discretion. There is no such showing here. Whether a juror under those circumstances would make a competent juror would depend very much upon the person whose qualifications were being inquired into, his intelligence and fairmindednesS. These are matters for the trial court to pass upon. There is nothing in the. examination of this juror to show that he would be influenced one way or the other by that circumstance. Indeed, his own answers indicated the contrary. The ruling of the court violated no statute governing the question. It was a matter for the court to hear and determine in view of all the facts and circumstances disclosed by the examination. (See Forbes v. Madden, 98 Kan. 559, 158 Pac. 850; State v. Henson, 105 Kan. 581, 185 Pac. 1059; State v. Tucker, 137 Kan. 84, 92, 19 P. 2d 436.) More than that, Olson did not sit as a juror in the trial of this case, defendants having excused him by a peremptory challenge; hence the error, if any, of the court’s ruling on the challenge for cause becomes of but little importance, since no complaint is made of the qualifications of any juror who participated in the trial. (State v. Hooper, 140 Kan. 481, 502, 37 P. 2d 52.)
On the merits this was largely a fact case. While some material facts were controverted, there is an abundance of evidence to sustain the jury’s verdict. It will be necessary, however, to notice a few other points discussed by appellants.
Evidence on behalf of plaintiff tended to show that early in August, 1931, plaintiff made an arrangement with the Producers Livestock Commission Company of Kansas City, through its manager, W. T. Angle, to go to South Dakota and purchase pigs on a commission. A few days thereafter he told Fred McLeod about this arrangement. Fred said that he and his brother wanted some pigs and that he would go to Dakota with plaintiff and buy pigs on his own account. They went together to Mitchell, South Dakota, where for a week they visited farmers and purchased pigs, plaintiff for the commission company at Kansas City, and McLeod for himself. Plaintiff received word from his commission company to purchase no more pigs. McLeod then told plaintiff that he wanted to go home and asked plaintiff to stay there and purchase pigs for defendants, and it was then agreed that plaintiff should buy pigs for defendants and that he should receive a commission therefor of 25 cents per hundredweight; that plaintiff stayed in South Dakota and purchased pigs, which were shipped to defendants, until they had all they needed, and that his commission due thereon was the sum asked in his petition. In the course of the examination of plaintiff he testified to a conversation between himself and W. T. Angle at Kansas City. This was objected to as being hearsay. The objection was overruled. Appellants complain of the ruling. The point is not well taken. It was simply an incident in the story leading up to the relation between the parties to the action. Defendants’ liability is not predicated upon that conversation. Another bit of evidence admitted over defendants’ objection is complained of. Fred McLeod had testified that the evening before he and plaintiff started for South Dakota they had dinner at the home of his father at Topeka and it was there agreed that they would go to South Dakota and purchase pigs in partnership. Plaintiff not only denied such an agreement, but denied that he was at the home of defendants’ father the evening before they started for South Dakota. He testified that he spent the evening at his own home and from there had a telephone conversation with Fred McLeod. Plaintiff’s sister testified that she was at the home of Fred McLeod that evening, that he had a telephone conversation which he said was-with plaintiff, and later Fred McLeod told her what the conversation was. She testified to those matters. We regard the evidence as competent.
Appellants complain of a special question submitted to the jury. This was directly on the point as to whether it was agreed between plaintiff and Fred McLeod at the Windham Hotel at Mitchell, South Dakota, on the evening before McLeod returned home that plaintiff should buy pigs for defendants and receive a commission of 25 cents per hundredweight from defendants therefor. The jury answered this in the affirmative. The question was not only proper, but it was especially appropriate for the reason that it went directly to the controverted issue between the parties upon which their right in this lawsuit depends.
Appellants complain that the court instructed the jury concerning the law of implied contract. In one of the instructions the court defined a contract and how it might be entered into, and in that connection spoke of both express and implied contracts. Plaintiff had sued on an express contract. He did not claim any right to recover on an implied contract. What was said by the court did not imply that plaintiff was attempting to recover on an implied contract, but was simply given as a part of an instruction pertaining to contracts generally. More than that, the jury found for plaintiff on an express contract, and in answer to a special question found that the express contract alleged by plaintiff had been made. This demonstrates the jury was not misled or confused by anything said in the court’s instructions concerning implied contract.
We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for injuries sustained in a collision between two automobiles. Judgment was for plaintiff. Defendant appeals.
Defendant operated a cream-buying station on the east side of Kansas avenue in Liberal, Kan. A Chevrolet semitrailer truck was used in the business. This truck consisted of a trailer which was attached to a motor. It was what is known as a six-wheel truck, and was so constructed that the front part where the motor was carried and in which the driver rode could be turned practically at right angles to the rear of the truck. -
Early in the morning of the day of the accident the driver of this truck, an employee of defendant, backed it up against the curb in front of the place of business of defendant at right angles to the curb. He turned the motor part of the truck so that it pointed southwest. This was done about 12:30 a. m. on the morning of the accident. The rear lights of the trailer were headed directly east; the front trailer lights were headed directly west; the left front trailer light was partly obscured by the cab of the tractor parked as it was. The over-all length of this truck was about 24 or 26 feet. It was of a dark-green color. On the night in question it was misting and drizzling a little. The visability was poor.
Plaintiff was driving a Ford coupé, going north on Kansas avenue about 1:30 in the morning. On his right in the coupé were two young men friends. On the lap of each of these two young men a young lady was seated. The coupé was equipped with a windshield wiper, but it was not working. At the time of the injury to plaintiff there were three cars parked against the curb on the west side of the street directly across the street from where the truck was parked. The point of the truck that was farthest west was 4.5 feet from the middle of the street. As plaintiff approached the truck from the south he was driving on the right-hand side of the street at about 15 or 20 miles an hour. According to his testimony the truck extended to his left 7 or 8 feet. He was about 25 or 30 feet from the truck when he first saw it. He put on his brakes immediately and swung to the left to avoid hitting the truck. The swing- to the left took the coupé to the left of the middle line of the street. When the coupé reached a point where it was directly west of the trailer part of the truck and the rear part of the coupé was just west of the tractor part it was headed almost directly north. The left wheels of the coupé were a little west of the middle line of the street. At that point the eoupé collided with a car being driven from the north. The left bumper of the coupé hit the left bumper of the other car at a point just about even with the headlights of the two cars. The lights on the coupé were good. At the time of the collision the coupé came almost to a complete stop. The distance from the west curb of the street to the easternmost part of the cars that were parked across the street from the truck was about 12 or 13 feet. This left about 16 feet clear driving space between the truck and these cars. As a result of the collision the driver of the coupé was thrown through the windshield and injured so badly that the sight of one eye was destroyed. The driver of the coupé brought this action by his father as next friend against the driver of the car with which he collided, and the owner of the truck.
The answer of defendant truck owner was in effect a general denial, and an allegation that any injuries sustained by plaintiff were due to his own contributory negligence. The driver of the car with which plaintiff collided filed an answer and cross petition in which he set out several specific acts of negligence on the part of' plaintiff and charged that the injuries of plaintiff were due to these acts of negligence and, furthermore, that the defendant was entitled to damages from plaintiff.
The case was submitted to a jury. A verdict was returned in favor of plaintiff against the owner of the truck and in favor of the driver of the other car. Judgment was rendered accordingly. From this judgment defendant truck owner appeals.
The defendant argues that his demurrer to the evidence of plaintiff should have been sustained. The argument is that plaintiff was negligent because he was driving his car in such a manner that he could not stop or turn within the distance that an object became visible by the light furnished by his headlights. This rule is well established. (See Giles v. Ternes, 93 Kan. 140, 143 Pac. 491; Rhoades v. Atchison, T. & S. F. Rly. Co., 121 Kan. 324, 246 Pac. 994; Haines v. Carroll, 126 Kan. 408, 267 Pac. 986; also Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593.)
Plaintiff argues that this case comes under the exception to that rule where this court has held that where the obstruction was of such a 'character and so placed that a motorist driving his car properly equipped with lights and brakes at a moderate speed is unable to see it in time to prevent colliding with it, the driver of the car cannot be held guilty of contributory negligence as a matter of law. (See Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P. 2d 837; also Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 12 P. 2d 1103.)
The question in this case becomes one of which rule should apply. To start with, we know that plaintiff did not have his car under such control that he could have stopped it before he hit the truck. He was compelled to drive his car into the truck or turn into the part of the street where he might expect to collide with traffic coming from the opposite direction. As soon as he saw the truck he put his foot on the brake and started to stop. His car was practically at a standstill when it collided, but it was past the truck, hence he was compelled to go into the wrong traffic lane. Whether his vision was obscured by the mist that had been falling on his windshield so that he did not see the truck soon enough, whether his lights did not give sufficient light to enable him to see far enough ahead, whether his brakes were not sufficient to enable him to stop or whether he was traveling at too great a speed we are unable to say. Any one or all of these conditions may have existed. This we know by the testimony of plaintiff — he was unable to stop his car-in the time that elapsed after he saw the truck and before he reached it. This obliged him to turn into the traffic lane where he was out of place. This caused his injury. We see nothing in the position of the truck or its condition that would make this case come under the rule in the cases cited and relied on by plaintiff. We have concluded, therefore, that the evidence introduced by plaintiff proved him to be guilty of contributory negligence, and a demurrer to it should have been sustained.
The judgment of the trial court is therefore reversed with directions to enter judgment for defendant.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Johnston, C. J.:-
This was an action for malicious prosecution brought by W. E. Oliver against George H. Graham. The trial resulted in a verdict which was directed by the court in favor of defendant, upon which judgment was entered. Plaintiff appeals.
Graham filed a complaint before a justice of the peace, charging plaintiff with the larceny of lumber consisting of two planks, 2 x 10’s, 18 feet long; four 2x8’s, 16 feet long; eight 2x4’s, 16 feet long; 10 shiplaps 14 feet long; ten 1 x 12’s, 16 feet long, and o.ne-half roll of roofing paper, all of the value of $28.30, and he procured the issuance of a search warrant upon which a search of plaintiff’s premises was made. A second search warrant was later procured upon which a further search was made. In a preliminary examination before the magistrate plaintiff was held for trial in the district court and in the trial that followed there the plaintiff was acquitted. Shortly afterwards the present action was brought, in which the defendant was charged with instituting the prosecution maliciously and without probable cause and for the purpose of defaming and injuring plaintiff. Among other things, it was alleged that defendant had visited plaintiff’s premises just before the complaint was made and had placed markings on plaintiff’s lumber, and afterwards when an officer accompanied defendant in a search of the premises, defendant professed to identify the pieces of lumber by the markings on them. It was further alleged that in the making of the complaint and in causing a search of the premises, and in otherwise promoting the prosecution, the defendant acted in bad faith with the knowledge that the charge was untrue and that the plaintiff was innocent of the charge. The answer of the defendant admitted the filing of the complaint, the procuring of two search warrants and that he had given testimony against the plaintiff in the justice and district courts, but he denied that he acted maliciously and without probable cause. He further alleged that he had previously stated the facts to the county attorney, who took charge of the prosecution, prepared the complaint upon which the arrest was made and the search warrants were issued, and that thereafter the county attorney conducted the examination in justice court and the trial in district court.
At the trial plaintiff produced testimony tending to show that the lumber was his own and had been purchased from a certain lumber company; also that the defendant, prior to the complaint and issuance of the search warrant, had gone upon plaintiff’s premises and placed markings on plaintiff’s lumber and afterwards brought the officer and pointed out the markings as having been made before the lumber was taken and used the marks as his means of identifying the lumber he claimed was stolen..
There was testimony by plaintiff that the defendant bore ill will toward him, and also testimony of the plaintiff’s good character, and that his credit and reputation were injured by the arrest, and also as to the expense and loss caused by the prosecution. The defendant demurred to plaintiff’s evidence, which the court after consideration overruled. Defendant then introduced his evidence denying that he was actuated by malice, stating that he had missed lumber from his premises, that he had marked the lumber in question the previous November, and that it was by these marks that he identified the lumber on plaintiff’s place, and not by any markings made just before the prosecution was begun. He also testified that he had laid the facts before the county attorney, giving him all of them in his possession,' and that officer had prepared the papers used in starting the prosecution, and had subsequently conducted the examination and trial of the plaintiff. The court, upon the motion of defendant, then directed the jury to return a verdict for the defendant. As the case stood at that time the facts which were in dispute should have been submitted to the jury. When the court overruled the demurrer to plaintiff’s evidence the court evidently determined that his evidence made a prima jade case, that the prosecution was brought maliciously and without probable cause. Plaintiff’s evidence, although not strong, tended to establish those facts. If it was sufficient then it was enough to take the case to the jury even after defendant had given evidence contradicting that produced by the plaintiff. In Kelley v. Ryus, 48 Kan. 120, 29 Pac. 144, it was said:
“Where evidence is introduced on the trial which, if uncontradicted, would fairly prove all that is necessary for the plaintiff to prove in order to make out his case, it is error for the trial court to instruct the jury to find for the defendant, 'although such evidence might be contradicted by .other evidence. The court has nothing to do with any conflict in the evidence, but must submit the question as to which is true and which not to the jury.” (Syl. If 2.)
Whether the prosecution was instituted through ill will or malice is of course a question of fact for a jury, and whether there is probable cause is said to be a mixed question of law.and fact. It is a question for the court where there is no dispute upon the particular facts upon which'probable cause is predicated. Here there was disputed evidence as to the facts on the proposition and it has been decided that:
“In an action for damages for malicious prosecution, if the facts tending to establish the existence or want of probable cause are in dispute, it is then the duty of the court to submit such question to the jury.” (McGarr v. Schnoor Cigar Co., 125 Kan. 760, syl. ¶ 3.)
And further that:
“The court may properly conclude such matter is in dispute where there is conflicting testimony, even if some of the isolated facts, standing alone, might be sufficient to make it a matter of law for the court.” (Syl. ¶ 4.)
The defendant testified that he stated the facts to the county attorney and acted upon his advice when he instituted the prosecution, and he insists that he should be protected against liability by the advice so given and acted upon.
There still remains, however, the question whether the defendant acted in good faith in presenting the case to the attorney, and whether he made a fair and full statement of the facts to him. In respect to the functions of the court and jury as to proof of probable cause, the general rule is that where there is a dispute of facts the case must be sent to the jury with proper instructions; further that the credibility of witnesses is necessarily a question for the jury as well as whether the defendant had an honest belief of plaintiff’s guilt. It has been said that:
“It is also the province of the jury, when the defendant claims to have acted under advice of counsel, to find whether the advice of counsel was in fact obtained, -whether there was a full disclosure of facts made, whether reasonable diligence was used in ascertaining the facts, and whether the defendant sought and followed the advice in good faith.” (18 R. C. L. 61.)
Our conclusion is that the case should have been submitted to the jury to determine the disputed facts and that a directed verdict was not justified. The judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Hutchison, J.:
This was a foreclosure action, and it involves the question of whether the provision in the mortgage promising to pay the taxes, and if not paid, authorizing the mortgagees to pay them and recover the same with interest, is an obligation for an unconditional payment of money.
R. S. 60-729 requires that—
“. . . In all actions founded on written instruments for the unconditional payment of money . . . the answer shall be verified by the defendant, his agent or attorney.”
The petition is in the usual form, attaching a copy of the note and mortgage and copying in the petition some provisions of the mortgage, one of which is as follows:
“, . . the said first parties agree to pay all taxes and assessments of whatever nature levied upon said premises before the same become delinquent; and if not so paid the legal holder of this mortgage may, without notice, declare the whole sum of money herein secured due and payable at once, or may elect to pay such taxes or assessments, and shall be entitled to recover the amount so paid, with interest at the rate of ten percent per annum, and this mortgage shall stand as security therefor.”
The petition alleges the failure of defendants to pay the taxes for the years 1932,1933 and 1934, and that they were paid by the mortgagees in the sum of $408.25 on August 19, 1935. The defendants, makers of the note and mortgage, filed an unverified answer, to the effect that they do not know who paid these taxes, concluding as follows:
■ . and the defendants, therefore, deny that payment was made by the plaintiffs. If it appears upon proof that payment was made by the plaintiffs the said defendants deny that the plaintiffs are entitled to interest in excess of 6 percent per annum.”
The plaintiffs first filed a motion for judgment on the pleadings, which was overruled. They then filed a demurrer to the unverified answer, which was also overruled. An appeal was taken by plaintiffs from both these adverse rulings. The answer did not contain a general denial or any special denial except with reference to the taxes as above stated, nor did it set up any counterclaim or ground of affirmative relief. Was the unverified answer sufficient to put in issue the right -of the plaintiffs to recover for the taxes claimed to have been paid by them and interest thereon at ten percent?
The appellees in support of the favorable ruling claim that the action rests on a dual basis, first for recovery upon a note and second for recovery of money alleged to have been paid for taxes, and that the latter is manifestly not founded on a written instrument for the unconditional payment of money. This reasoning would more nearly apply to some of the other provisions of the mortgage than the payment of taxes — for instance, the promise to keep the buildings and fences in good repair and to permit no waste, both of which requirements immediately follow the tax provision above quoted from the mortgage.
It is true one of the two written instruments, the note, can be considered and be the basis of a cause of action without reference to the mortgage, but not so with the mortgage. It is security for the payment of the note, and this one like all others refers to the note, and it is not complete or sufficient in itself for any purpose without the note. (Black v. Barnes, 142 Kan. 381, 46 P. 2d 625.)
This action is based upon both written instruments. The only remaining question is whether it is for the unconditional payment of money. The payment of taxes is the payment of money, because it takes money to pay taxes just as it does to pay premiums on fire insurance policies. The money is paid in both instances for the bene fit of the plaintiffs to protect their security for the payment of the note. Our attention is not directed to any condition affecting or concerning the payment of taxes. There was no condition mentioned in the instruments by which the defendants could avoid the payment of the taxes. The contract imposed that obligation. The duty of paying them imposed by the written instruments was unconditionál. There was no stipulation, provision or prerequisite to- the promise and obligation to pay the taxes.
The case of Rose v. Boyer, 92 Kan. 892, 141 Pac. 1006, was a suit on a note and for the foreclosure of a mortgage where the unverified answer contained a general denial, a special denial of ownership in the plaintiff and an allegation of fraud and collusion between the payee and the plaintiff, but set up no counterclaim or ground of affirmative relief, and it was held:
“. . . that such answer being unverified, the plaintiff was entitled, under section 110 of the civil code (R. S. 60-729), to judgment on the' pleadings.” (Syl.)
The case of Hamson v. Babbitt, 123 Kan. 32, 254 Pac. 332, was decided under the same statute against the defendant because the answer was not verified. The action was on account for lumber and the answer was a general denial. In the opinion it was said:
“When the code was revised in 1909 the second subdivision was added. The purpose of the addition was threefold: First, to narrow issues to those matters only concerning which there is genuine dispute'; second, to apprise plaintiff of the nature of the defense to a note or account or claim for wages, so that he may reply advisedly and may intelligently prepare for trial; third, to forestall sham defenses by requiring defendant, his agent, or attorney, to swear to the truth of the answer. Defendant’s answer fulfilled none of these purposes; raised no issue, and stated no defense.” (p. 34.)
In the case of Stinson v. Bell, 96 Kan. 191, 150 Pac. 603, the court affirmed a judgment rendered against the defendant who did not verify his answer in a foreclosure action on a note and mortgage where defects in both note and mortgage were urged by defendant.
In the case of Nat’l Bond & Investment Co. v. Evans, 118 Kan. 656, 236 Pac. 447, which was a replevin action, the verification section was referred to in the closing paragraph of the opinion as follows :
“A general denial is ordinarily a sufficient pleading of defense in a replevin action. The action was not upon an unconditional promise to pay, hence its verification was not imperative. (R. S. 60-729.)”
The distinction is readily recognized between a replevin action and an action to recover judgment on a note and foreclose a mortgage which secures its payment. The note and mortgage in the case at bar were unquestionably written instruments for the unconditional payment of money, and this unconditional payment of money applied to the payment of the taxes as well as the payment of the note and the interest on both at the rate specified in the note and mortgage. R. S. 60-729 requires that answers in such actions must be verified in order to raise an issue. No issue being raised, the motion of plaintiffs for judgment on the pleadings should have been sustained, and the answer was demurrable.
As to the second point suggested by appellees, the failure of plaintiffs to plead possession of tax receipts or redemption certificates, we think such was not necessary under the mortgage contract.
The rulings of the trial court on the motion for judgment and demurrer to the answer are reversed, and judgment should be entered for plaintiffs on the pleadings. It is so ordered.
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The opinion of the court was delivered by
Dawson, J.:
This action was begun by Anthony L. Ruff, a taxpayer, to enjoin the board of county commissioners of Shawnee county from constructing a paved road on the south 66 feet of the 400-foot right of way of the Union Pacific railway for a distance of ten and a half miles from the city of Silver Lake through the city of Rossville to the western limits of Shawnee county.
It may help to an understanding of the transaction which led up to this lawsuit to refer briefly to certain more or less familiar matters of history, to certain acts of congress, and to certain judicial decisions. In 1862 and 1864 congress granted to the predecessors of the Union Pacific Railroad Company a right of way for a railroad over the public domain from the Missouri river to the Pacific ocean. (12 U. S. Stat. 489; 13 U. S. Stat. 356.) This right of way grant was 400 feet wide. In Kansas this grant crossed Shawnee county from east to west near the center of the county. The railway was constructed through the county about 1867. In close proximity and paralleling the railway, sometimes on one side of it and sometimes on the other, there is a well-travelled public road which has been in existence for half a century. It is familiarly known by various names — U. P. highway, Golden Belt highway, Victory highway, and by its latest designation, U. S. No. 40. Much of this road in Shawnee county is on the railway right of way, but not through express permission of the-railroad company. In certain stoutly contested lawsuits, some of which arose over thirty years ago and the last of which was decided in 1912, it was conclusively determined that under the terms of the original congressional land grants for railway rights of way, the general rule of law creating prescriptive title by adverse possession did not apply, and that it was both the privilege and duty to the railway grantee to hold on to its right-of-way grants to meet possible future needs of transportation and its incidents. The effect of these decisions was to hold for naught all claims of right to whatever portions of its right of way were occupied or held adversely to the railway company by private persons or by the public itself. And thus it eventually developed that the public had no right or title to the land which this Shawnee county road had occupied for so many years. A multitude of situations of this sort throughout the states traversed by the Pacific railroads prompted congress to enact a statute, the Norris act, which took effect on June 24,1912, and which provided that the congressional grants for railway rights of way would thereafter be subject to the local law of adverse possession in whatever state they were located. (37 U. S. Stat. 138.) The effect of this act on this particular road in Shawnee county was that unless the Union Pacific Railroad Company within fifteen years from June 24, 1912,' should take some effective step to assert its paramount right and title, or obtain an acknowledgment thereof by some official body authorized to bind the public, the company would or might lose the land occupied by this road by the Kansas law of adverse possession.
Accordingly in 1916 the matter of occupancy of the Union Pacific right of way in Shawnee county became-the subject of certain conversation between the attorneys for the railroad company and the board of county commissioners of Shawnee county, which at that time was engaged in making certain improvements on this road. The railroad representatives informed the board that it could recognize no right of occupancy of its property for highway purposes except that of sufferance. In 1922 the board of county commissioners set about the paving of a section of this road from a point about eight miles west of Topeka to the city of Silver Lake. The Union Pacific commenced an action in the district court asserting its ownership of the land on which the road improvements were to be made, and prayed for an injunction. The county board denied the ownership of the railroad company and alleged that it had a mere easement for railroad purposes, and that the public had an equal right to the use and occupancy of the land for highway purposes. In a consent decree it was adjudged—
“That the railroad company was the owner of a tract of land 400 feet wide, but further found and adjudged that the prayer of the petition be denied, ‘with the condition and proviso that the laying and maintaining of said pavement shall not give to Shawnee county or to the public any title to the ground upon which said pavement is laid or any interest that can ripen into a title by user or that will interfere with the plaintiff in the use for railroad purposes of any portion of its right of way 400 feet in width, being 200 feet on each side of the center line of plaintiff’s railroad track as now located along the lands in controversy herein, and upon the further condition and proviso that the laying and maintaining of said pavement shall not impair the title of the Union Pacific Railroad Company to its said full width of right of way.’ ”
In 1925 and 1926 the board of county commissioners instituted preliminary proceedings looking to the paving of that portion of the road which lies between Silver Lake and the west line of Shawnee county. At Silver Lake the road crosses the Union Pacific railway from south to north and runs west on the railway right of way for about two miles. It there recrosses the railway track to the south side and continues westward on the railway right of way for about four miles to Rossville, at which place it crosses again to the north side of the railway and occupies the railway right of way for four or five miles to the west line of the county. The proposed road improvement depends upon the acquisition of a satisfactory' title to the roadway, and this became the subject of negotiations between the board of county commissioners of Shawnee county and the officials of the railroad company. The bureau of public roads of the national government signified that the granting of federal aid would depend upon a relocation of the road to avoid so many railway crossings. The state highway commission took the same attitude as the federal government. The Union Pacific Railway Company signified its willingness to grant a fifty-year lease for a roadway on the south 66 feet of its 400-foot right of way; and on May 11, 1927, its legal representatives addressed'the county board, in part, thus:
“Final decision of the county on the lease should be made so that it can be fully executed early in June. At present there are county highways oo cupying certain portions of our right of way without any lease. The lease when redrawn will contain a provision that the county acknowledges the title in fee simple of the railroad company in all existing highways described in the lease. Under the act of congress of June 24, 1912, adverse possession for the period of fifteen years from that date will give the occupant title by possession. Hence if our title is not recognized and acknowledged in writing before the expiration of the fifteen-year period on June 24, 1927, we will have to protect our rights by proper court action. Of course, there is no dispute or controversy between the county and the railroad company, and merely mention the necessity of prompt action on the lease, so that the rights of the railroad company will not be impaired.”
A few days later the county board adopted a resolution, viz.:
“Resolution op Acceptance.
“Whereas, The Union Pacific Railroad Company has tendered to the county of Shawnee, state of Kansas, a lease of portions of its right of way to said county, which said lease is in words and figures following, to wit: [Here follows copy of lease.]
“And whereas, it is considered that the best interest of said county of Shawnee, state of Kansas, will be subserved by the acceptance of said lease:
“Therefore, be it resolved by the board of county commissioners of the county of Shawnee, state of Kansas: That the terms of the lease submitted by the Union Pacific Railroad Company be and the same are hereby accepted in behalf of the county of Shawnee, state of Kansas; that the chairman of said board of county commissioners of the county of Shawnee is hereby authorized, empowered and directed to execute said lease in behalf of said county, and that it be duly attested by its clerk.
“Adopted and approved at Topeka, Kan., this 17th day of June, 1927.
J. A Cole,
John Stjtherin, Jr.,
[Seal.] • Board of County Commissioners.
“Attest: O. B. Eddy, Clerk of the County of Shawnee, State of Kansas’’
The lease contract comprises about twelve printed pages of the abstract, but for present purposes its contents may be abridged thus:
The railway company leases to the board of county commissioners a strip of land for a roadway sixty-six feet wide on the south side of its right of way from Silver Lake to the county line. The lease is to endure for fifty years, and provides that if in that interval the lessor shall need the land for railway purposes it will construct and make over to the county board a similar highway equally well improved without cost to the county. The consideration for the lease is $5 per annum, and the county is to assume all taxes and assessments levied upon the leased premises during the lease term, to keep the premises free from combustible material, to plant no trees or shrubbery without consent of the lessor, to put nothing on the premises which might obstruct the view, and to provide culverts, bridges and other structures necessary for drainage, and to hold the lessor harmless from damages on account of such structures arising from fire caused by sparks from the lessor’s engines or trains. It was also stipulated that no special assessments for establishing or improving the highway upon the leased premises should be charged against the company’s adjacent right -of way, and that wherever the lessor now maintains a fence on the right of way between its railway tracks and the inner margin of the leased premises the county board will relocate and maintain such fence at its own expense. It was also stipulated that the county board will complete the relocation and construction of the road on the leased premises within three years, and when it is opened for public travel the county board will close to traffic, vacate and abandon seven specified grade crossings over defendant’s railway track in that locality, and vacate and abandon all portions of the railway company’s right of way for various distances specified, including that part of the present highway “on the north side of the track of the lessor from the west limits of the city of Rossville, Kan., to the west county line.”
On the execution of this lease the county board set -about the relocation and improvement of the road, when the proceedings were halted by this lawsuit.
The plaintiff, Anthony L. Ruff, owns and resides on a farm situated on both sides of the railway track about three miles west of Rossville. His residence and farm buildings are situated on the nox-th side of the public road as now located. If the proposed paved road is constructed on the south side of the railway track and the present location of the road is abandoned, he will be inconvenienced and his farm will be depreciated in value. His petition recited at length the history of the establishment of the highway many years ago, pleaded the substance of official proceedings of the board of county commissioners concerning the road and improvements made thereon at public expense from time to time in bygone years, all of which had been ordered and done with the knowledge of the Union Pacific Railroad Company, and that the latter was thereby estopped to claim that the public did not have good right and title to the roadway; that in 1916 plaintiff erected his house and bam and other improvements on the road so traveled for so many years; that he built his improvements in reliance upon the public and permanent character of the road and that its vacation and abandonment would greatly inconvenience him. Plaintiff further alleged that the lease contract between the board of county commissioners and the railway company was illegal and that the county board thereby incurred unlawful obligations which would increase his burdens as a taxpayer. Plaintiff also alleged that the county commissioners’ proceedings for the-relocation of the road were illegal in various particulars, chiefly because certain provisions of statute governing the alteration of highways to eliminate railway crossings were not followed. Other objections to the validity of the commissioners’ proceedings pleaded by plaintiff, so far as important, will be noted as we proceed.
The county board answered, admitting the execution of the lease of the roadway, and admitted the proceedings for the relocation of the road, and concluded with a general denial. The state highway commission intervened and pleaded at length the matters affected by the litigation which in its judgment concerned the general public. In part it alleged:
“6. That in the year 1925 representatives of the state highway commission and the bureau of public roads of the United States department of agriculture made a route check of the road known as the Victory highway from Topeka to St. Marys, and recommended as a part of the location of said road that from Rossville to the west county line the highway should be parallel to and on the south side of the Union Pacific railroad.
“8. That on the 23d day of May, 1927, the board of county commissioners of Shawnee county, Kansas, finding it necessary in order to eliminate sharp turns, dangerous places, dangerous railroad crossings and for the proper construction of said road, ordered and directed that that portion of state highway No. 40, commonly known as the Victory highway, from the west limits of Silver Lake to the west limits of Shawnee county, Kansas, be relocated by vacating the road on the north side of the Union Pacific railroad tracks and opening a road on the south side of the Union Pacific right of way.
“10. That on the 23d day of May, 1927, the board of county commissioners of Shawnee county, Kansas, ordered that said road, as relocated, be improved as a federal-aid road, and that the construction and maintenance work be carried on under the direct supervision of the state highway commission as required in the federal-aid road act.
“13. That on the 21st day of September, 1927, the state highway commission of the state of Kansas ordered, by proper resolution, that in the matter of permanently improving U. S. No. 40 in Shawnee county, Kansas, from the west borders of the city of Silver Lake to the west county line, that no provision for further aid to the county in financing such project should be made by the state highway commission unless said county should apply for such aid upon a highway to be located on the south sixty-six feet of the right of way of the Union Pacific Railroad Company.
“15. That the board of county commissioners of Shawnee county, Kansas, having relocated the portion of U. S. highway No. 40, which lies west of the city of Silver Lake, as above set out, thereupon proceeded to exercise the right of eminent domain to acquire the right of way necessary for the relocation and improvement of said road.
“19. That, as above stated, the improvement of the road running from Silver Lake to the west boundary line of Shawnee county, Kansas, is but a part of the improvement of said Victory highway through the state of Kansas; that the location of said road has been made under the direction and with the approval of the state highway commission and the bureau of federal roads, and that the location of said road in Shawnee county, Kansas, is made for the purpose of having said road through Shawnee county, Kansas, properly located with respect to said road in adjoining counties.
“20. That if plaintiff’s land should suffer damages because of the relocation and improvement of said road the law provides a method of compensation to plaintiff, and such damages should not be put forward as a reason for enjoining the relocation and improvement of said road.”
The Union Pacific Railroad Company was impleaded as a defendant. It answered with various admissions and denials and set up its title, and alleged that the existing road occupied its premises by permission only; that the roadway had never been actually or impliedly dedicated for public use, and that the company had at all times asserted its full ownership under its grants from congress; that for several years the matter of leasing part of its right of way for a public road had been the subject of negotiations between the board of county commissioners and the railway company, and that such lease had eventually been affected on June 17, 1927, as alleged in plaintiff’s petition. The railway company concluded its answer with a challenge of the plaintiff’s right to maintain this action.
Plaintiff filed a reply to the railway company’s answer, consisting of a general denial; and filed a demurrer to the intervening petition of the state highway commission, which was overruled.
The cause was tried on record evidence and oral testimony without a jury. The court made comprehensive findings of fact, to which neither party is now objecting. These occupy some eighteen pages of the abstract and counter abstract. Judgment was formulated in accord with the trial court’s conclusions of law, which read:
“I. The plaintiff has a legal right to maintain this suit.
“II. Neither the board of county commissioners nor the public has acquired any title or right of possession as against the Union Pacific Railroad Company to that part of right of way of the railroad company now occupied by the present highway through the proceedings set out in findings of fact numbers VI, VII, VIII, IX and X.
“III. Neither the board of county commissioners nor the public has ever acquired any title or right of possession as against the Union Pacific Railroad Company to that part of the right of way now occupied by the present highway through adverse possession.
“IV. There has been no dedication by the Union Pacific Railroad Company to the board of county commissioners or to the public of that part of the right of way now occupied by the present highway, nor has the railroad company by its conduct lost its title or right of possession to the same by estoppel.
“V. On June 17, 1927, defendant Union Pacific Railroad Company was the owner of the entire width of its 400 feet of right of way, including the portion of the same now occupied by the present highway, and at any time up to said date was entitled to the possession thereof if it so desired.
“VI. The provision of the lease in question providing for the locating and construction of the highway on the south sixty-six feet of the Union Pacific Railroad right of way from Silver Lake to the west line of the county, and the order of the board of county commissioners of May 23, 1927, so locating said highway are illegal and void for the reason that no petition of twelve householders 'living in the vicinity of the highway so located and to be constructed has ever been filed with board of county commissioners of Shawnee county, Kansas.
“VII. The board of county commissioners of Shawnee county were not authorized by section 68-114, Revised Statutes of 1923, to vacate the present highway and relocate the same or to lay out a highway on the south sixty-six feet of the Union Pacific railroad right of way from Silver Lake to the west line of Shawnee county.
“VIII. While the county nor the public has ever acquired title or right of possession of that part of the right of way now occupied by the present highway, the board of county commissioners of Shawnee county, Kansas, had a legal right to contract with the railroad company in said lease for the surrender of possession of the present highway to the said railroad company, and to recognize the title and right of possession of the railroad company in that part of the right of way now occupied by the present highway, and such contract and recognition has the effect of preventing the statute of limitations from having run in favor of the defendant, the board of county commissioners, and in preventing said board of county commissioners from having acquired title or right of possession since June 17, 1927.
“IX. The provisions of section 2 of the lease pertaining to the assumption of the county of all taxes and assessments levied upon the leased premises during the continuance of the lease and of section 8 relating to the moving and maintenance of right-of-way fences of the railroad company by the county are ultra vires of the board of county commissioners and are void.
“X. Plaintiff is entitled to a permanent injunction against the defendant carrying out the provision of the lease looking to the relocation of the present highway and the laying out and establishment of a public highway on the leased premises.”
Plaintiff appeals from so much of the judgment as is based on the above conclusions of law numbered II, III, IV, V and VIII. The railway company brings its cross appeal, assigning error on so much of the judgment as is based on conclusions of law numbered VI, VII, IX and X. The county board and the state highway commission adopt the same general position as that taken by the railway company, but have not filed formal and separate cross appeals in their own behalf. In their separate briefs the railroad company and the highway commission argue the want of plaintiff’s capacity to maintain the action, but section 265 of the civil code (R. S. 60-1121) is his warrant of authority therefor, although that code section does not imply that a private taxpayer may litigate every conceivable quesT tion which may arise out of such a contract as the one now under consideration. So, too, if plaintiff can show a right or interest peculiar to himself which is unlawfully invaded by the lease contract he can maintain an action to enjoin its enforcement where no other legal redress is obtainable. But, of course, plaintiff as a private citizen cannot litigate legal questions which are not his especial concern. [Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651.)
Turning to the errors pressed by plaintiff.:
It is argued that the county or the public has a prescriptive title to the roadway by virtue of its half century’s use. But that was effectively laid at rest by repeated decisions of the United States supreme court, beginning with Northern Pacific Railroad Co. v. Smith, 171 U. S. 260, 43 L. Ed. 157, decided in 1898, and ending in Kindred v. Union Pacific Ry. Co., 225 U. S. 582, 56 L. Ed. 1216, decided June 10, 1912. Doubtless this last decision gave impetus to the bill then pending in congress, the Norris act, which took effect shortly thereafter, June 24,1912.
Virtually the same conclusion as that of the federal supreme court in cases involving encroachments in railway rights of way had been reached by this court twenty years before, in U. P. Rly. Co. v. Kindred, 43 Kan. 134, 23 Pac. 112, where it was held that the possession of abutting or adjoining landowners who cultivate and occupy a part of a railway right of way granted by congress must be regarded as permissive only, and not hostile or adverse so as to confer title. To the same effect were Railway Co. v. Conlon, 62 Kan. 416, 63 Pac. 432; Railway Co. v. Watson, 74 Kan. 494, 87 Pac. 684; Railroad Co. v. Davenport, 102 Kan. 513, 170 Pac. 1003. In a specially concurring opinion in State, ex rel., v. Paul, 112 Kan. 826, 832, 213 Pac. 165, the pertinent law was stated and the leading texts and decisions were cited:
“It is the settled law in this state, and generally, that in the absence of special statutory authority, acting under the general statutes to lay out streets and highways, municipal and county officials have no authority to lay out a street or highway longitudinally upon the right of way of a railroad company. (U. P. Rly Co. v. Kindred, 43 Kan. 134, 135, 23 Pac. 112; City of Bridgeport v. New York & New Haven R. R. Co., 36 Conn. 255; New Jersey Southern R. R. Co. v. Long Branch Commissioners, 39 N.J.L. 28; Road from Great Bend to Great Bend Village, 2 Penn. Co. Ct. Rep. 335; Nanticoke Bridge, 40 Penn. Super. Ct. Rep. 345; Portland Ry. Light & Power Co. v. City of Portland, 181 Fed. 632, 634; City of Fort Wayne v. The Lake Shore and Michigan Ry. Co., etc., 132 Ind. 558; 15 Cyc. 619, 10 A. & E. Encycl. of L., 2d ed., 1096; 3 Dillon on Municipal Corporations, 5th ed., § 1020; 3 Elliott on Railroads, 3d ed., § 1566.)”
It was because of such an insuperable mass of federal and state decisions that in 1919 and 1920 congress gave its express sanction that railway rights of way held under federal grants might be used or granted for highway purposes. (41 U. S. Stat. 304, Act of Oct. 22, 1919; 41 U. S. Stat. 621, Act of May 25, 1920.) Of course these recent féderal acts did not change any state law. They merely made possible subsequent state legislation on.that subject.
Plaintiff next attacks the validity of the consideration and obligations undertaken by the board of county commissioners. A fifty-year lease for a roadway upon the Union Pacific Railway Company’s 400-foot right of way in Wyandotte county has already been upheld by this court. (Sandburg v. Wyandotte County Comm’rs, 121 Kan. 26, 245 Pac. 1029.) But it is pointed out that the present contract binds the county commissioners to pay the taxes on the leased premises. Superficially that seems questionable, but when it is considered that so long as the leased premises are used as a public roadway it will be public property, and no taxes will be assessable against it, the objection dissolves. The provisions which bind the county board to keep the premises free of combustible material, not to plant trees which would obscure the view of the lessor’s railway trains, and to provide proper culverts, bridges and the like for draining the leased premises and the adjacent right of way, and to save the lessor harmless from damages pertaining thereto, are only obvi ous and necessary details of this contract; and to hold them invalid would be to make it practically impossible for any roadway to be obtained from this railroad company. Certainly no responsible railroad official would grant or lease a roadway adjacent to the main line of his railroad without exacting some such conditions dictated by common prudence.
It is also plausibly argued that the board has no power to pay anything for a roadway except a stipulated sum of money, and Zahn v. Ottawa County, 108 Kan. 741, 196 Pac. 1060, and Haucke v. Morris County, 115 Kan. 659, 224 Pac. 64, are cited in support of that contention. But those cases dealt with contracts between boards of county commissioners and private individuals, fqr the special benefit of private individuals. This lease contract is not made for the private benefit of individuals, but for the common benefit of the public which will use this road for the next half century. There was nothing to prevent the county board from exercising the right of eminent domain to acquire a roadway over farming lands adjacent to the Union Pacific right of way, but land is so very valuable in that locality* — the well-known Kaw valley — that the board might well hesitate to incur the necessarily heavy expenditure of public funds that project would require, especially when the railway company was willing to lease a roadway on relatively nominal terms.
Another objection to the lease is the provision that no special assessments for establishing or improving the highway located on the leased premises shall be levied against the adj acent right of way. That provision is of no present importance. There is now no statute under which such a special assessment could be levied, consequently an increase of plaintiff’s burdens as a taxpayer is not threatened by this provision, and he has therefore no justiciable concern therewith. Plaintiff also objects to the county’s obligation concerning the relocation and maintenance of railway fences at its own expense. That, too, is a mere incident, not improper, at least so far as concerns plaintiff’s right to maintain this lawsuit. And the same answer sufficiently disposes of plaintiff’s fault-finding with the county board’s agreement to close certain grade crossings. The trial court -found that the relocation of the road on the south side of the railway track will not eliminate any crossings which presently exist over regularly laid-out north-and-south highways. (Finding XXVII.) Plaintiff does not show how the closing of those seven grade crossings will hurt him peculiarly, so he is not now justicially concerned therewith. (Elting v. Clouston, 114 Kan. 85, 217 Pac. 295.)
Plaintiff cites the statutes which govern changes to be made in public roads to avoid sharp turns or dangerous places (R. S. 68-102, et seq.; 68-114; 68-509), and insists that a petition of twelve householders is requisite both to the relocation of a public road and to the vacation of an existing road. (Heatherman v. Kingman County Comm’rs, 123 Kan. 77, 254 Pac. 321.) But if the railway company had assumed a dog-in-the-manger attitude in this matter, and had brought ejectment against the county, the public would not have a roadway on this railroad company’s property on either side of the track, and the ordinary statutory provisions for procuring a highway would then necessarily have to be invoked and followed. Here it cannot strengthen the county’s right in the old roadway, nor lessen the county’s right to contract for a new roadway, that certain in-apposite statutory steps have not been taken. The statutory provisions cited were not designed to fit the peculiar situation presented in this case. In its negotiations with the Union Pacific the county board’s warrant of authority was founded on R. S. 19-212; and yet, so far as practicable, it appears (finding XXV) that the board was proceeding to relocate this road in substantial accord with R. S. 68-114, which provides:
“When it is found necessary to lay out, relocate, alter, widen or vacate a road or highway for the purpose of eliminating sharp turns or other dangerous places, or for the proper construction of a highway, or for the extension of a bridge or culvert, the board' of county commissioners shall, by order of said board, lay out, relocate, alter or widen a public road, and may vacate an existing road. All land required for the laying out, widening or altering of a road shall be-acquired by the board of county commissioners by purchase or by donation.”
The pertinent resolution of the county board, in part, reads:
“The board further finds: That it is necessary to so relocate said state highway No. 40 in order to eliminate sharp turns, dangerous places, dangerous railroad crossings, and for the further reason of connecting and joining with the state highway in Pottawatomie county, Kansas, and for the further purpose of better facilitating travel and for the proper construction of the road.”
Under the statute just quoted and in the circumstances confronting the board (finding XXV), the proceedings of the board of county commissioners were valid and proper. Were the necessity for action even less urgent, the abandonment of the north side of the railway track would not warrant the granting of an injunction at plaintiff’s behest so long as he is not left altogether without ingress and egress over his own land, or by some other existing though less convenient way. (Hiller v. A. T. & S. F. Rld. Co., 28 Kan. 625; Silver v. Clay County, 76 Kan. 228, 91 Pac. 55; Anderson v. Cloud County, 83 Kan. 419, 111 Pac. 464; id., 90 Kan. 15, 132 Pac. 996; Foster v. City of Topeka, 112 Kan. 253, 210 Pac. 341; Bolmar v. City of Topeka, 122 Kan. 272, 252 Pac. 229.)
A vigorous argument is made that the county board cannot legally vacate the present roadway under the general doctrine of user, estoppel and acquiescence. However, it ought to be clear from what has already been said, as well as by repeated and controlling decisions of the United States supreme court already cited, that estoppel and acquiescence cannot be applied to the prejudice of a railway company which has merely refrained from discommoding the public from using part of its right of way not presently required for its corporate purposes. The best that can be said for this argument of counsel is that they completely make their point if the rule they invoke applied to railway right-of-way property — but it does not. A judgment in an ejectment suit by the railroad company would have speedily effected a vacation of the roadway, and the county board were not bound to make an untenable defense in that sort of lawsuit before agreeing to vacate and surrender to the railroad company what belongs to it. (Railroad Co. v. Heger, 110 Kan. 368, 204 Pac. 1008, and federal citations therein.)
Plaintiff quite reasonably emphasizes his peculiar interest in the continued maintenance of the highway on its present location. This court appreciates his unfortunate situation. He has an excellent set of improvements on the north side of the present highway. Most of his farm is on the south side of the railway and south of where the relocated road-will run. His most convenient means of access to the greater part of his farming land is by á private grade crossing over the railway track. That crossing will doubtless remain, but his necessities for its use will be greatly multiplied when the present roadway is abandoned. What other access to the outside world from plaintiff’s farmstead there may be, if any, does not appear. The court is not now called on to say whether any justiciable redress can be extended to plaintiff, but it is clear that he is not entitled to an injunction to prevent the Union Pácific Railway Company from reclaiming its property, nor to interfere with the performance of the lease contract whereby a new roadway for public use is being provided by the board of county commissioners.
The foregoing disposes of the principal points urged on our atten tion in plaintiff’s appeal, and their disposition virtually takes care of the matters raised in the railway company’s cross appeal. Conclusions of law Nos. VI, VII, IX and X are ill founded and must be set aside.
It is therefore ordered that on plaintiff’s appeal the judgment is affirmed, and on the cross appeal the judgment is reversed and the cause remanded with instructions to dissolve the injunction heretofore entered against the defendants and to enter judgment in their behalf.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to construe a provision of the will of Mary M. Nixon, deceased, which reads:
“I further give, devise and bequeath to my son, Wm. Nixon, the old home place about four miles north of Council Grove, Kansas, being the north one-half of the southeast quarter and the northeast quarter of the southwest quarter of section 27, in township 15, range 8, Morris county, Kansas, upon the following conditions: Said Wm. Nixon shall pay within two years after my death to George Nixon, $685.71; David Nixon, $685.71; Gertrude Ramsey, $685.71; Tillie C. Kahl, $685.71; Carrie Munlcers, $685.71, and E'dith Crowley, $685.71; and in case said Wm. Nixon does not accept said farm upon the said terms, then the executor shall sell said farm, and authority is hereby given to sell and convey said farm and divide the proceeds of said farm among my children above named (in proportion to the amounts designated, to be paid by said Wm. Nixon in case he takes said farm) and in such case one-seventh of the net proceeds from the sale of said farm shall go to the said Wm. Nixon.”
It appears that Wm. Nixon failed to make payment of the sums required within the two years. Subsequent thereto the plaintiffs filed this action praying the court to construe the will, and that Wm. Nixon, as executor, be required to sell the property in controversy and divide the proceeds among the other heirs, one-seventh each. Upon being served with summons Wm. Nixon made payment to various of the other devisees and procured releases from them. He then filed an answer, setting up the releases, whereupon the plaintiffs replied that the releases had been procured .by his false and fraudulent representations.
The defendants (Wm. Nixon and Wm. Nixon, executor) contend that under the provisions of the will the fee simple title to the premises in controversy, upon the admission of the will to probate, passed to and vested absolutely in Wm. Nixon, and that he has been at all times since and now is the owner thereof. That the provisions of the will did not make the vesting of the fee title in him a condition or dependent in any manner upon the payment of the bequests mentioned, but created only a personal liability against him. That he accepted the farm and has been in the exclusive possession thereof ever since. That he paid the plaintiffs the amounts to which they were entitled, which released him from further obligation to them. Also, that he could not with safety make payment of the bequests under the provisions of the will until after the estate of Mary Nixon had been settled, and until after a final determination by the probate court that no other claims had been allowed against the estate. The defendants also contend that it was the intention of Mary Nixon to devise the land to Wm. Nixon charged with specific legacies, that is, that the legacies should be paid out of the land itself. It is argued that when realty is devised absolutely, with the condition that the devisee either support someone favored by the testator or pay a certain amount to others of his relatives, such condition only makes the payment or support a charge on the devisee; that such a condition is never construed as a condition subsequent unless in the clearest of terms it is declared to be such condition; that the courts will never imply a condition subsequent; that whenever the condition is made in consideration for the devising of the land in question such a condition is construed to be a charge on the land devised, which land is to be considered as a security for the payment of the condition imposed.
Whether or not the provision constituted a condition precedent or subsequent, its terms were so clear that we are of the opinion if Wm. Nixon desired to accept the bequest he was bound to do so in accordance with the stated conditions. He was bound to perform within the two years, and that having failed to do so. he lost title to the property. Mary M. Nixon was privileged to write into her will such conditions as she desired so long as they were not contrary to law, and Wm. Nixon was privileged to accept or reject them.
“The right to make a will includes the right to make it according to the testator’s own desire, subject only to the statutory restrictions. It is no condition of this right that the will shall please a jury, or a court, or the testator’s relatives or anyone else.” (Ginter v. Ginter, 79 Kan. 721, syl. ¶ 9, 101 Pac. 634.)
In construing a will it is the duty of the court to give effect to every part thereof, and the intention of the testator as so expressed shall prevail when not inconsistent with the rules of law.
When a condition precedent or a condition subsequent is provided for in a will, and a time is given in which the devisee is to comply therewith, ordinarily it must be performed within that time.
“Whether a condition subsequent must be performed within a reasonable period after the vesting of the estate, or whether the devisee shall have his whole life to perform it, is often difficult to determine. No question as to the period within which a condition subsequent must be performed can arise where the testator has expressly indicated the length of time which the devisee shall have for its performance.” (1 Underhill on Wills, § 487, p. 645.)
“Where no time is fixed for the performance of a condition, the law gives a reasonable time in which to perform the same. Where there has been a pure testimentary gift upon condition and a clear and unqualified acceptance thereof by the legatee, evinced by entering into possession, the legatee must perform the condition however burdensome.” (18 A. & E. Encyc. of L., 2d ed., 734.)
The defendants cite and rely upon a class of cases which hold that “a condition subsequent which defeats the estate in fee which has already been created by the same instrument, must clearly appear and not be implied.” (Skillman v. Van Pelt et ux., 1 N. J. Eq. 511; Roberts v. Crume, 179 Mo. 572, 73 S. W. 662; Graham v. Graham, 297 Mo. 290, 249 S. W. 37.) They also cite and rely upon Korn v. Friz, 128 Mo. 428, 107 N. W. 659, wherein the court was considering a devise of a farm by the testator to his son William Korn upon the express condition that the son should pay to his daughter five thousand dollars within one year after the death of the testator’s wife. The court used this language:
“This naturally brings us to a consideration of the intent with reference to this legacy. The will does not, in terms, provide that the same should be a charge, but uses the expression that the devise to William is upon the condition that he shall, within one year after the widow’s death, pay this amount to Phillipina. The expression ‘upon condition,’ if not otherwise qualified, might be construed as a condition precedent so that William could not take the land at all without making such payment, but since he was to take in possession immediately upon his mother’s death, and was not required to make the payment until afterwards, namely, within a year, of course no condition precedent was intended. If, then, it is a condition at all, it is a condition subsequent; but there is no suggestion that his title is to be divested upon breach of that condition, and no provision is made for anyone else to take the land upon such breach.” (p. 436.)
It will be noted that in the instant case the bequest was upon condition that he pay within two years after death of the testatrix, and that “in case Wm. Nixon does not accept said farm upon said terms” then it shall be otherwise disposed of, so it appears clear that Wm. Nixon was not to receive the fee in the farm except upon the conditions stated. But it is argued Wm. Nixon accepted the farm and destroyed the alternative provided by the will, and became personally liable to pay the legacies in consideration of his having taken the property. We think he could not take it except by compliance with the conditions, and this he did not do. In our opinion the requirement in the clause is more in the nature of a consideration for the devise.
In Campbell v. Durant, 110 Kan. 30, 202 Pac. 841, it was said in the opinion:
“There is also a minor matter, not now controlling, but which will require the attention and compliance of plaintiffs before their title to the real property devised to them will be free from possible defeasance. It was devised to their father, Charles A. Campbell, upon condition that a $250 tombstone be placed by the beneficiary at the testator’s grave. Necessarily this is a condition subsequent because title passed to plaintiff’s father at the moment of the testator’s death, and the tombstone could not be erected at the testator’s grave until later. The condition however, must be met, and that, too, within a reasonable time, otherwise plaintiff’s title will be subject to defeasance at the suit of the testator’s heirs.” (p. 33. See, also, Hawkins v. Hanson, 92 Kan. 740, 142 Pac. 280.)
In Mollenkamp v. Farr, 70 Kan. 786, 79 Pac. 646, this language was used in the opinion:
“It is evident that the father had no thought of discriminating against any of his children; that he wished his sons to acquire title to the farm, .to the exclusion of their sisters, only upon making them due compensation to be determined by the method indicated. . . . The requirement exacted of the defendants was in the nature of a consideration for the devise, and on that account it should be regarded as a condition precedent.” (p. 790.)
In Wheeler v. Walker, 2 Conn. 196, it was said:
“Where a testator devises an estate to his two sons, they jointly and severally paying to each of his two daughters a certain sum within one year after his decease, it was held that this was a conditional devise to the sons, and to entitle themselves to the estate they were bound to perform the conditions strictly by paying the money within the time prescribed.” (Syl.)
“The question is, whether this is an absolute devise of the lands to the sons, and a legacy to each of the daughters, or whether it is a device on condition that the sons pay to each of the daughters $300. The word ‘paying’ according to all the authorities clearly imports a condition. There is no gift or legacy to the daughters. No right is created in their favor by the will; nor any words used which can be construed to imply such intent. It is then a conditional devise. The devisor has given the land to his sons on condition that they pay $300 to each of his daughters within one year after his decease. To entitle them to the land, they are bound literally to perform the condition on which it was given and pay the money by the time prescribed. Having failed to do this, they have no right to the land under the devise. It reverts to the heirs of the devisor. The plaintiffs had a right to enter and are entitled to recover.” (p. 199.)
When one accepts under a will, he is bound by its conditions. He cannot take the benefits under a will and defeat the conditions. The will provided for acceptance of the farm upon the terms stated. Otherwise the property was to be sold and divided among the children. Wm. Nixon attempted to accept the property but did not comply with the conditions, in that he failed to make the payments provided for in two years. (See Bird v. Hawkins, 58 N. J. Eq. 229.) The property therefore reverted to the heirs as the testatrix provided.
The judgment is reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Harvey, J.:
This is an action on two promissory notes of $2,000 each and to foreclose a real-estate mortgage given to secure their payment. The defense was payment to the last assignee of record. The reply put this defense in issue. The trial court made findings of fact, also conclusions of law, and rendered judgment for defendants. The plaintiff has appealed.
The pertinent facts may be stated as follows: The defendants owned and operated a farm of 560 acres in Harper county. The farm was encumbered by a first mortgage for $10,000 and by a second mortgage for $2,500. In September, 1921, defendants, being indebted to one Craig in the sum of $14,500, gave him six notes of $2,000 each and one note for $2,500, and to secure the same gave him a mortgage on the farm subject to the two prior mortgages. Craig sold, and by indorsement conveyed to one N. Melson the six notes-for $2,000 each and assigned to Melson the mortgage, in so far as it applied as security, for the payment of those notes, and this assignment was duly recorded. Melson transferred two of the notes to a firm in Hutchinson and gave to it a partial assignment of the mortgage, and this was recorded. Melson, being indebted to the Cunningham State Bank, indorsed and delivered two of the notes to the bank as collateral security for his indebtedness there. He informed the officers of the bank of the existence of the mortgage, but at no time made any assignment in writing of the mortgage, or of any interest therein, to the bank, and therefore no assignment of record of the mortgage to the bank was ever made.
Thereafter the Cunningham State Bank failed. A receiver was appointed, and the interest of the bank in the two notes of $2,000 each, by sundry transfers, passed to the plaintiff, who became the lawful owner and holder of the notes, no part of which had been paid to the bank, or to its receiver, or to plaintiff. While the notes were held by the bank or the receiver some efforts were made to collect interest from defendants, but neither the officers of the bank nor its receiver indicated to defendants that the bank or its receiver was the lawful owner of the note.
In December, 1923, defendants paid to N. Melson $2,133, in full payment and satisfaction of the four notes of $2,000 each, which included the two notes of $2,000 each which Melson had transferred to the Cunningham State Bank as collateral security. At this time Melson delivered to defendants the two notes he then had in his possession, together with a written release of the real-estate mortgage as it applied to the four notes, which release was duly recorded December 22, 1923. At that time Melson did not deliver to defendants the two notes in question in this action then held by the receiver of the Cunningham State Bank, but informed defendants that the bank, or its receiver, made some claim to the two notes, but that such claim was unfounded, and that he, Melson, was the real owner of the notes. Defendants did not know that the bank or its receiver then owned the notes, but believed in fact that Melson owned them. Of the seven notes given by defendants to Craig the five not involved in this action were fully paid and satisfied by the defendants. The court found that in December, 1923, at the time of the settlement and payment to Melson, as above stated, that Melson was the only party with whom defendants could settle the mortgage indebtedness comprising the two notes in question and from whom defendants could secure a release of the mortgage. The court there fore held there had been a payment and that plaintiff could not recover. In support of the judgment of the trial court defendants rely upon a section of our statutes which reads:
"In cases where assignments of real-estate mortgages are made after the passage of this act, if such assignments'are not recorded, the mortgagor, his heirs, personal representatives, or assigns, may pay all matured interest or the principal debt itself prior to the recording of such assignment to the mortgagee, or if an assignment of such mortgage has been made that duly appears of record, then such payment may be made to the last assignee whose assignment is recorded in accordance with the provisions of this act, and such payment shall be effectual to extinguish all claims against such mortgagor, his heirs, personal' representatives, and assigns, for or on account of such interest or such principal indebtedness; and no transfer of any note, bond or other evidence of indebtedness, by indorsement or otherwise, where such indebtedness is secured by mortgage on real estate within this state, shall prevent or operate to defeat the defense of payment of such interest or principal by .the mortgagor, his heirs, personal representatives, or assigns, where such payment has been made to the mortgagee or to the assignee whose assignment appears last of record under the provision of this act: Provided, however, That, in all such cases the assignee who may hold such unrecorded assignment shall have a right of action against his assignor to recover the amount of any such payment of interest or principal made to such assignor as upon an account for money had and received for the use of such assignee.” CR. S. 67-321.)
The judgment of the trial court was in accordance with this statute. The only assignment of the mortgage the bank had was such as naturally flows as a matter of law from the fact that two of the notes secured by the mortgage had been indorsed and delivered to it. But in that respect it is in no better position than it would have been in if Melson had in fact made an assignment of the mortgage to the bank and the same had not been recorded. The statute specifically authorized the mortgagor to pay the last assignee of record, and limits the remedy of the holder of the unrecorded assignment of the mortgage to an action against his assignor.
Appellant argues that defendants had actual knowledge of the rights of the Cunningham State Bank and its receiver, and refers to R. S. 67-322, which provides that where the mortgagor has actual notice or knowledge of the assignment or transfer, the payment to the last assignee of record does not constitute a defense in an action by the owner of the note. There are two answers to this argument. The first is, the court found that the mortgagors had no actual knowledge that the bank or its receiver was the owner of the two •notes in question; and the second is that R. S. 67-322 applies only to assignments made prior to 1899. Appellant complains of the finding of the court with respect to lack of knowledge of the defendant of the ownership of the notes by the bank or its receiver. But the finding appears to be supported by the evidence, and whether it is or not becomes immaterial in view of the fact that R. S. 67-322, on which plaintiff relies, applies only to assignments prior to the passage of that act. The assignment of the mortgage in question, if one can be said to have been made to the bank, was made long after that date, and the rights of the parties with respect to it are governed by R. S. 67-321. We have examined all authorities cited by appellant on this point and find nothing in any of them contrary to this view.
Appellant argues that in any event defendants could not pay Melson their notes of the face value of $8,000 with only $2,133 in money, and that the word “payment,” as used in the statute; is not tantamount to a compromise and settlement. We regard this point as being without substantial merit. One to whom a debt secured by a mortgage is payable, if he cares to do so, may accept in full payment a sum less than the whole amount due thereon in full settlement of the mortgage debt, and release the mortgage of record. And when payment is made in a sum or manner satisfactory to the person entitled to receive it, “such payment shall be effectual to extinguish all claims against such mortgagor.” (R. S. 67-321.)
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment of the district court of Wyandotte county awarding damages and attorney’s fee to plaintiff because of an alleged overcharge of freight rates for transporting a carload of com from Bartley, a shipping point on the Burlington railway in southwestern Nebraska, to Gower, a local point on the Santa Fe railway about ten miles southeast of St. Joseph, Mo.
The corn was originally billed for shipment from Bartley to St. Joseph, but was reconsigned to Gower. Plaintiff prepaid the freight charges from Bartley to St. Joseph according to the published tariffs, 20% cents per hundredweight, and was compelled to pay an additional 7 cents when the corn was reconsigned to Gower.
Defendant sought to justify this rate on the ground that the authorized tariff schedules do not specify any rate from Bartley to Gower, and that the railway company was therefore justified in adding the local rate of 7 cents per hundredweight from St. Joseph to Gower.
Plaintiff’s claim is based on the fact that the proportional rate from St. Joseph, Mo., to Kansas City, Mo., is 4 cents per hundredweight, that Gower is an intermediate point between St. Joseph and Kansas City, and the published tariff schedules provide that where the more distant point takes a less rate the latter shall be considered as the correct proportional rate to the intermediate point. The rule prescribed by the tariff, and which is the nub of this lawsuit, is thus stated in Santa Fe No. 5588-M and I. C. C. No. 9317:
“Rates to or from points not shown in this tariff will, in the absence of specific rate from point of origin to destination, be made by adding to the rates shown in this tariff the rates shown in other tariffs lawfully on file with the interstate commerce commission, but if the rate so made exceeds the rate to or from a point beyond on the same direct line or route, as shown in this tariff, the latter will apply.”
On the issues thus joined the evidence showed that the Santa Fe railway has two rail lines from St. Joseph to Kansas City, one on the east and another on the west side of the Missouri river, but neither line goes directly to Kansas City. Gower, the destination of this corn shipment, is on the Santa Fe line which runs easterly from St. Joseph, through Gower, for a considerable distance to Henrietta on the Santa Fe main line and thence southwesterly to Kansas City, a total distance of 113 miles. The other line runs west from St. Joseph to Atchison, thence southerly through Kansas to Holliday, and thence easterly on the Santa Fe main line to Kansas City, a total distance of 92 miles.
The pertinent tariff schedules and rules were introduced in evidence, and witnesses of apparent experience and competence on the somewhat abstruse subject of freight rates explained their meaning. It was shown that where there is no through rate specified from one point to another (as from Bartley, Neb., to Gower, Mo.) the rate covering such shipment is the lowest combination via the route taken, but where that combination exceeds the rate to a more distant point on the same direct line or route as shown on the tariff the latter rate is the correct one. One item of an official tariff gave the rate from Bartley to St. Joseph as 20% cents per hundredweight. Another item gave the rate from St. Joseph to Gower at 7 cents, and from St. Joseph to Kansas City “on shipments originating at points not covered by through rates at 4 cents per cwt.” Appropriate references were repeatedly made in the tariff to the rule quoted above, which declared that where a rate had to be arrived at by computation and “the rate so made exceeds the rate to or from a point beyond on the same direct line or route, as shown in this tariff, the latter will apply.”
An interpretation of this rule and particularly of the meaning of the phrase, “to a point beyond on the same direct line or route,” brought a clash of expert opinion testimony, that of the defendant being that it meant the shortest route, which would be the 92-mile line via Atchison and west of the Missouri river to Holliday and thence east to Kansas City. On the other hand, the evidence for plaintiff was that the direct line or route meant one where there was “no back haul.” It was also developed in cross-examination of an expert witness for defendant that occasionally traffic like this corn shipment, originating on other lines and delivered to the Santa Fe at St. Joseph, did move over the longer east-side route through Gower to Kansas City, and that when it did the rate was 4 cents per hundredweight, just as it was over the shorter west-side line. Another fact of considerable evidential significance was shown by the circumstance that after this controversy arose the tariff rule was amended thus:
“Rates between St. Joe on the one hand and Kansas City on the other will apply when routed through Holliday, Kan., and the line north to Wilder only.”
Defendant’s requested findings of fact and declarations of law were refused. The trial court found generally and specially for plaintiff and gave judgment accordingly. Some of the court’s special findings read:
“1. That the shipment of corn, in evidence, originated at Bartley, Neb., and moved from there to Saint Joseph, Mo., over the line of the Chicago, Burlington & Quincy Railroad Company.
“2. That the shipment was at that point reconsigned to Gower, Mo., and that said shipment moved from Saint Joseph, Mo., to Gower, Mo., over the line of the Atchison, Topeka & Santa Fe Railway Company.
“3. That the Atchison,' Topeka & Santa Fe Railway Company has a line from Saint Joseph, Mo., to Kansas City, Mo., via Atchison and Leavenworth, Kan.
“4. That said line is the direct line between Saint Joseph, Mo., and Kansas City, Mo.
“5. That said Atchison, Topeka & Santa Fe Railway Company has another line between Saint Joseph, Mo., and Kansas City, Mo., via Gower and Henrietta, Mo., which said line is also the direct line between Saint Joseph, Mo., and Kansas City, Mo.”
Defendant appeals, urging various points which will be noted in the order of their presentation.
Although the judgment for plaintiff was only for $30.20, and an attorney’s fee of $50, an appeal will lie to this court seeing that the cause and its proper determination necessarily depended upon matters of federal law, and our appellate jurisdiction extends to all cases involving “the constitution, laws or treaties of the United States,” regardless of the amount in controversy. (R. S. 60-3303; 3 C. J. 389; 2 R. C. L. 35.) This point has been incidentally noted in Mo. Pac. Rly. Co. v. Kimball, 48 Kan. 384, 29 Pac. 604; Coghlan v. Williams, 69 Kan. 144, 76 Pac. 394; Griggs v. Hanson, 86 Kan. 632, 634, 121 Pac. 1094; Harrington v. Missouri Pac. Rld. Co., 123 Kan. 35, 254 Pac. 379.
Error is assigned on the trial court’s finding of fact that the Santa Fe line from St. Joseph to Kansas City via Gower and Henrietta on the east side of the Missouri river was a direct line. But it cannot be denied that there was substantial testimony to support that finding, and it was only in the single matter of actual mileage that it was any less a direct route than the one through Atchison and Holliday on the west side of the Missouri river. An examination of any good railroad map makes it none too easy to declare that the west route with its two crossings of the Missouri river is less devious and more direct than the east route, except in the one matter of shorter mileage. The rulings of the interstate commerce commission on this subject are entitled to great consideration, not as evidence, but as illustrative of its methods of interpreting tariff schedules. The commission lives in an atmosphere where tariff interpretations are debated the year round, and its opinions are bound to be helpful even where they are not authoritative and controlling. By repeated rulings that tribunal has held that mere differences on mileage are not controlling. Thus in Kyoleum Co. v. Director General, 104 I. C. C. 1, it was said:
“The tariff naming the rate of 26.5 cents from East St. Louis to Pittsburgh contained no restriction as to routing, and all lines over which these shipments moved were parties to the tariff. . . . The distance from St. Louis to Pittsburgh via the Pennsylvania is 612 miles, and the distance from St. Louis via the route of movement through Chicago . . . was 1,118 miles, a difference of 506 miles. . . . No bach haul was involved in the instant case. The route of movement was very circuitous, but no question of reasonableness is involved.” (pp. 2, 3.)
In Freeman Grain Co. v. Director General, 68 I. C. C. 559, the complainant consigned nine cars east from Lucas, Kan., to Salina, and then reconsigned them to California points. Lucas is 56 miles northwest of Salina on a branch of the Union Pacific, and traffic from Lucas to western points would normally move west through Colby. The haul through Salina was 78 miles longer than that through Colby. The rate from Lucas to California points was 64 cents, and the commission held the shipper was entitled to that rate. It said:
“There was nothing in the tariff naming the joint rate w^ich would have precluded complainant from routing the shipments through Salina had they been billed direct from Lucas to the California points.” (p. 560.)
In Ginocchio-Jones Fruit Co. v. Director General, 81 I. C. C. 495, a carload of grapes had moved from Fresno, Cal., through Kansas City to Chicago, and then by reconsignment back to Kansas City. The rate from Fresno was the same to both Kansas City and Chicago. The carrier collected the rate to Chicago plus a return haul to Kansas City. The commission held:
“As the through rate from Fresno to Kansas City was not restricted to any particular routes, ... it- would have been applicable on a shipment moving over the Southern Pacific through El Paso, Tex., to New Orleans, thence Elinois Central to Chicago, and any carrier party to the tariff beyond. Since there was a published through rate from point of origin through point of diversion to final destination under the reconsignment tariff of the Santa Fe, the rate applicable from point of origin to final destination was applicable to complainant’s shipment.” (p. 496.)
It has also been repeatedly held by the commission that where a railroad company desires to restrict the application of its published rates to one of two or more available routes it must do so in clear and unequivocal language, otherwise the published rate will apply to either route. Thus, in Pioneer Lumber Co. v. Director General, 74 I. C. C. 288, it was said:
“Defendants argue that they [the rates] applied only by way of the direct route through Staples and Brainard, Minn., and not over the route of movement, which is 146 miles longer. There was nothing in the governing tariffs which restricted the application of the rates to a particular line of the Northern Pacific.” (p. 289.)
In Routing on Grain and Grain Products, 81 I. C. C. 725, where the construction of tariff schedules of rates from Illinois points to Texas points was involved, and the railroads contended that those rates did not apply through certain intermediate points in Iowa, it was said:
“If it were respondent’s purpose to restrict the application of the section 2 rates to particular routes, they should have done so by clear and unequivocal language. The tariff contains no definition of direct routes. On the contrary, the routes are open and shipments may move to Texas points from Chicago and Peoria, both served by the Illinois Central and Northwestern, through Omaha, and unlisted points in Iowa on these routes'would be directly intermediate.” (p. 727.)
In Rose Lake Lamber Co. v. O. S. L. R. R. Co., 100 I. C. C. 221, the commission said:
“On numerous occasions we have found that if carriers desire to restrict the application of a joint rate to any particular route they should do so by clear and unequivocal language. With no routing restrictions shown in the tariff naming the joint rate sought, the shipment is properly entitled to such rate.” (p. 222.)
In addition to the testimony for plaintiff, the trial court could justly attach considerable evidential significance to the fact that the present controversy seems to have prompted the carriers to amend their tariff and thus limit the 4-cent rate from St. Joseph to Kansas City to the route west of the Missouri river. Since there was substantial and competent evidence to support the trial court’s findings of fact, it will have to stand. (Farney v. Hauser, 109 Kan. 75, 198 Pac. 178; Citizens State Bank v. Wiseman, 125 Kan. 510, 514, 265 Pac. 39; Phoenix Ry. Co. v. Landis, 231 U. S. 578, 59 L. Ed. 377, 381.)
It is next contended that the trial court erred in allowing plaintiff an attorney’s fee. It would not be allowable under the Kansas statute, as we have repeatedly held. (Andrews v. Railroad Co., 99 Kan. 347, 161 Pac. 600; Grain Co. v. Railway Co., 105 Kan. 272, 276, 162 Pac. 405; Harrington v. Missouri Pac. Rld. Co., 123 Kan. 35, 254 Pac. 379.) But in this case the fee was awarded under express authority of the federal statute itself. Section 8 of the 'act (U. S. Comp. Stat. 1918, § 8572) provides:
“In case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be ■ done any act, matter or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the ease.”
It is contended, however, that the state court had no jurisdiction of this action involving this breach of the interstate commerce act, and that his grievance could only be redressed in a federal court; and that this is the necessary effect on the literal text of section 9, which reads:
“Any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the commission as hereinafter provided for, or may- bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district [or circuit] court of the United States of competent jurisdiction; but such person or,persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee or agent of the corporation or company defendant in such suit to attend, appear, and testify in such case, and may compel the production of the books and papers of such corporation or company party to any such suit; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.” (U. S. Comp. Stat. § 8573.)
It is indeed a surprising contention that such a grievance as that of plaintiff is not justiciable in a state court — and yet there appear to be some federal and state decisions to support that view. However, the United States supreme court is the paramount authority on the construction of federal statutes, and nothing that court has yet said gives any intimation that such a claim as plaintiff’s cannot be litigated in a state court of general jurisdiction. And unless the federal statute expressly so declared or the federal supreme court so affirmed, we could not be persuaded that - in the enactment of remedial legislation of such widespread general interest as the regulation of interstate commerce, the congress has stripped the state courts of that jurisdiction they have always exercised — that of vindicating the rights of litigants under federal law precisely as they do under state law and to the same extent. Do not the state courts year in and year out hear and determine controversies arising under the federal employer’s liability law, the federal safety appliance act, and the like? Do we not entertain and decide actions filed by the railway carriers for the recovery of undercharges? (Case v. Union Pac. Rld. Co., 119 Kan. 706, syl. ¶ 2, 241 Pac. 693.) How comes it we have jurisdiction of cases under the interstate commerce act when a railway carrier seeks to recover an undercharge, but no jurisdiction when a shipper seeks to recover an overcharge or damages for its exaction? It is a general rule that where no inconsistency with the supremacy of the national government or its official agencies is concerned the state courts have concurrent jurisdiction with federal courts of actions arising under federal statutes, just as federal courts, subject to limitations imposed by the federal law itself, have concurrent jurisdiction with state courts of actions arising under state law.
In the notable early case of Gittings v. Crawford, Taney’s C. C. Dec. 1 (Fed. Cas. 5465), the defendant in a suit on a promissory note was a British consul. He challenged the jurisdiction of an inferior federal court on the ground that under the federal constitution (art. 3, § 2) the United States supreme court had sole jurisdiction of cases "affecting ambassadors, other public ministers and consuls.” Chief Justice Taney met and disposed of this contention in an opinion from which the following instructive excerpt is gleaned:
“There are no express words of exclusion in the clause which confers original jurisdiction in the cases mentioned upon the supreme court. Why should they be implied? They are clearly not implied in relation to the state courts, in the clause immediately preceding, which gives judicial power in certain cases to the courts of the United States; . . .
“ . . . The true rule in this case is, I think, the rule which is constantly applied to .ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive.” (pp. 7, 9.)
See, also, Robb v. Connolly, 111 U. S. 624, 637, 28 L. Ed. 542, 546.
In Hardaway v. Southern Railway, 90 S. C. 475, where a similar contention was made as a defense to an action to recover an overcharge, it was said:
“Numerous cases hold, we think correctly, that the federal courts and the interstate commerce commission have exclusive jurisdiction of actions based upon the interstate commerce act, or brought to enforce a right created by that act. (Van Patton v. Chicago, etc., R. Co., 74 Fed. 981; Edmunds v. Illinois Central R. Co., 80 Fed. 78; Carlisle v. Missouri, etc., R. Co., 168 Mo. 652, 68 S. W. 898; Copp v. L. & N. R. Co., 43 La. Ann. 511, 9 So. 441, 12 L. R. A. 725.) In some of the cases the broad statement is made that the state courts have no jurisdiction of actions to recover overcharges in the rates .on interstate shipments, but an examination of these cases discloses the fact that the cause of action was created by or the action was based upon the interstate commerce act, or the word ‘overcharge’ was used in the sense of an unreasonable charge. . . .
“To hold that the state courts have no jurisdiction of actions like this will result in so much inconvenience and be so injurious in its consequences to the citizens of the states, and will place them so completely at the mercy of interstate earners with regard to the settlement of such claims, that the argument in favor of that conclusion should be more cogent and convincing than it is to induce its adoption. The practical result of requiring shippers to go before the interstate commerce commission or in the federal courts to ■collect these small claims will be to compel the abandonment of them altogether. We feel sure that congress did not contemplate or intend’any such result, and in the absence of such intent, plainly expressed in or necessarily to be inferred from the provisions of the act, we are not inclined to adopt a construction which will lead to that result.” (pp. 483, 486.)
In Galveston, H. &. S. A. Ry. Co. v. Wallace, 223 U. S. 481, 56 L. Ed. 516, which was an action against a railway carrier for damages for failure to deliver goods shipped in interstate commerce, the jurisdiction of the state court where the action was begun was challenged on the ground that section 9 of the interstate commerce act made the jurisdiction of the federal' courts exclusive. The United States supreme court said:
“Where the statute creating the right provides an exclusive remedy, to be enforced in a particular way, or before a special tribunal, the aggrieved party will be left to, the remedy given by the statute which created the right. But jurisdiction is not defeated. by implication. And, considering the relation between the federal and state government, there is no presumption that congress intended to prevent state courts from exercising the general jurisdiction already possessed by them, and under which they had the power to hear and determine causes of action created by federal statute. (Robb v. Connolly, 111 U. S. 624, 637, 28 L. Ed. 546, 4 Sup. Ct. Rep. 544.)
“On the contrary, the absence of such provision would be construed as recognizing that where the cause of action was not penal, but civil and transitory, it was to be subject to the principles governing that class of cases, and might be asserted in a state court as well as in those of the United States. This presumption would be strengthened as to a statute like this, passed not only for the purpose of giving a right, but of affording a convenient remedy.” (p. 490.)
In Penna. R. R. Co. v. Puritan Coal Co., 237 U. S. 121, 59 L. Ed. 867, a shipper brought án action in a Pennsylvania state court against a railway company for damages for its failure and prejudicial discrimination in the matter of furnishing cars for the transportation of coal. The defendant’s motion to dismiss for want of jurisdiction was denied, and error was assigned thereon—
“(1) In holding that the state court had jurisdiction.
“(2) In failing to hold that, under the commerce act [24 U. S. Stat. 379, ch. 104, Com. Stat. 1916, § 8563], the federal court alone had jurisdiction.” (p. 125.)
The case went to the federal supreme court on a writ of error where the contention was made that whatever remedies were open to plaintiff were those conferred by the interstate commerce acts, and that those remedies did not embrace actions in state courts to recover damages because of injuries resulting from discrimination in the furnishing of cars. After briefly stating the antecedent history of the case, the court said:
“The railway company [insists] . . . that, (1) the determination of the- proper basis for the distribution of cars was a matter calling for the exercise of the power of the interstate commerce commission; (2) that no court had jurisdiction of a suit against it for discriminatory allotment until after the commission had determined that its rule for distribution was improper; and (3) that no suit for damages against an interstate carrier could be brought for damages occasioned by a failure to deliver cars, or for an unjust discrimination in distribution except in a United States court.
“1. These contentions involve a consideration of the jurisdiction of the commission, of the state courts, and of the federal courts. But fortunately it will not be necessary to enter into an elaborate discussion of each of the questions.” (p. 127.)
The court then summarized sections 3, 8 and 9- of the interstate commerce act, noted the new rights conferred upon shippers thereunder, and in what respect those rights can only be redressed by the interstate commerce commission or exclusively in the federal courts, and continued thus:
“But §§ 8 and 9, standing alone, might have been construed to give the federal courts exclusive jurisdiction of all suits for damages occasioned by the carrier violating any of the old duties which were preserved and the new obligations which were imposed by the commerce act. And, evidently, for the purpose of preventing such a result, the proviso to § 22 declared that 'nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.’
“That proviso was added at the end of the statute, not to nullify other parts of the act, or to defeat rights or remedies given by preceding sections, but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could, in a state court, recover for damages to property while in the hands of the interstate carrier; damages caused by delay in shipment; damages caused by failure to comply with its common-law duties, and the like. But for this proviso to § 22 it might have been claimed that, congress having entered the field, the whole subject of liability of carrier to shippers in interstate commerce had been withdrawn from the jurisdiction of the state courts, and this clause was added to indicate that the commerce act, in giving rights of action in federal courts, was not intended to deprive the state courts of their general and concurrent jurisdiction. (Galveston, &c., R. R. v. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 Sup. Ct. Rep. 205.)
“Construing, therefore, §§ 8, 9 and 22 in connection with the statute as a whole, it appears that the act was both declaratory and creative. It gave shippers new rights, while at the same time preserving existing causes of action. It did not supersede the jurisdiction of state courts in any case, new or old, where the decision did not involve the determination of matters calling for the exercise of the administrative power and discretion of the commission, or relate to a subject as to which the jurisdiction of the federal courts had otherwise been made exclusive.” (p. 129.)
Defendant holds the view that if any redress could be afforded plaintiff other than in the federal court it was the alternative one of a proceeding before the interstate commission. It seems to us quite clear that the interstate commerce commission could do nothing for plaintiff. It had done its full duty when it approved the tariff rates and rules under which this carload of corn moved, and plaintiff has no complaint with those rates or rules. He does not say that the 20%-cent rate from Bartley to St. Joseph and the 4-cent rate for points intermediate between St. Joseph and Kansas City are unreasonable. He is quite satisfied with those authorized and published rates. So all discussion of this controversy, being the concern of the interstate commerce commission, is beside the mark.
Looking into the cases relied on by defendant to support its contention that the jurisdiction of the federal courts for damages for overcharges is exclusive, we note the case of Van Patten v. Chicago, M. & St. P. R. Co., 74 Fed. 981, where it was so- held. Sections 8 and 9 of the act were discussed, but the significance of section 22, so clearly noted by the United States supreme court in Penna. R. R. Co. v. Puritan Coal Co., supra, was overlooked. Moreover, in the Van Patten case, nobody was contending that the state court had jurisdiction. The question was whether the federal circuit court of Iowa or some court (whether state or federal not raised) in Wisconsin, the domicile of the defendant corporation, had jurisdiction. In another case cited by defendant, Northern Pac. Ry. Co. v. Pacific Coast Lumber Mfrs. Ass’n, 165 Fed. 1, a number of lumber companies sought to enjoin a number of railroads from advancing their interstate freight rates in violation of the federal antitrust act and the interstate commerce act. What is said in the opinion is interesting and instructive arguendo, but again the matter of jurisdiction by a state court was not involved.
In R. J. Darnell, Inc., v. Illinois Cent. R. Co., 190 Fed. 656, cited by defendant, the action was begun in a state court and removed to a federal court. One of complainant’s grievances was that the published freight rate on lumber from Memphis to New Orleans was excessive, and another was that the interstate commerce commission had ordered the carrier to desist from charging the published rate and to reduce it. No reparation allowance had been made by the interstate commerce commission, and the carrier’s demurrer to complainant’s declaration was therefore quite properly sustained; and what was said as to the want of jurisdiction in the state court was not necessary to a conclusive disposition of the controversy. Another case cited by defendant, Carlisle v. Missouri Pacific Ry. Co., 168 Mo. 652, seems to support defendant’s contention, but it was decided in 1902, since which time the federal supreme court has repeatedly held that there is no warrant for holding that the jurisdiction of the federal court is exclusive of all controversies arising under sections 8 and 9 of the act.
In Pennsylvania R. R. v. Sonman Coal Co., 242 U. S. 120, 61 L. Ed. 188, 190, which was an action begun in a state court for damages because of the defendant carrier’s failure to furnish cars in violation of the interstate commerce act, and where it was insisted that by sections 8 and 9 the state court had no jurisdiction, the supreme court said:
“It is trae that §§ 8 and 9 deal with the redress of injuries resulting from violations of the act, and give the person injured a right either to make complaint to the interstate commerce commission or to bring an action for damages in a federal court, but not to do both. If the act said nothing more on the subject, it well may be that no action for damages resulting from a violation of the act could be entertained by a state court. But the act shows that §§ 8 and 9 did not completely express the will of congress as respects the injuries for which redresses may be had or the modes in which it may be obtained, for §22 contains this important provision: ‘Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.’ The three sections, if broadly construed, are not altogether harmonious, and yet it evidently is intended that all shall be operative. Only by reading' them together and in connection with the act as a whole can the real purpose of each be seen. They often have been considered, and what they mean has become pretty well settled. Thus we have held that a manifest purpose of the provision in § 22 is to make it plain that such ‘appropriate common law and statutory remedies’ as can be enforced consistently with the scheme and purpose of the act are not abrogated or displaced (Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 446, 447, 51 L. Ed. 553, 561, 562, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075); that this provision is not intended to nullify other parts of the act, or to defeat rights or remedies given by earlier sections, but to preserve all existing rights not inconsistent with those which the act created (Pennsylvania R. R. Co. v. Puritan Coal Co., 237 U. S. 121, 129, 59 L. Ed. 857, 872, 35 Sup. Ct. Rep. 484); that the act does not supersede the jurisdiction of state courts in any case, new or old, where the decision does not involve the determination of matters calling for the exercise of the administrative power and discretion of the interstate commerce commission, or relate to a subject as to which the jurisdiction of the federal courts is otherwise made exclusive (Id. 130); that claims for damages arising out of the application, in interstate commerce, of rules for distributing cars in times of shortage, call for the exercise of the administrative authority of the commission where the rule is assailed as unjustly discriminatory, but where the assault is not against the rule, but against its unequal and discriminatory application, no administrative question is presented and the claim may be prosecuted in either a federal or a state court without any precedent action by the commission (Id. 131, 132); and that, if no administrative question be involved, as well may be the case, a claim for damages for failing upon reasonable request to furnish to a shipper in interstate commerce a sufficient number of ears to satisfy his needs may be enforced in either a federal or a state court without any preliminary finding by the commission, and this whether the carrier’s default was a violation of its common-law duty existing prior to the Hepburn act of 1906, or of the duty prescribed by that act (Id. 132-135; Eastern Ry. Co. v. Littlefield, 237 U. S. 140, 143, 59 L. Ed. 878, 882, 35 Sup. Ct. Rep. 489; Illinois Central R. R. Co. v. Mulberry Hill Coal Co., 238 U. S. 275, 283, 59 L. Ed. 1306, 1310, 35 Sup. Ct. Rep. 760; Pennsylvania R. Co. v. Clark Coal Co., 238 U. S. 456, 472, 59 L. Ed. 1406, 1413, 35 Sup. Ct. Rep. 896).
“Applying these rulings to the case in hand, we are of opinion that a state court could entertain the action consistently with the interstate commerce act.. Not only does the provision in §22 make strongly for this conclusion, but a survey of the scheme of the act and of what it is intended to accomplish discloses no real support for the opposing view.” (p. 123.)
Another recent case to the same effect is St. Louis, B. & M. Ry. v. Taylor, 266 U. S. 200, 69 L. Ed. 247, 42 A. L. R. 1232.
To summarize and conclude: Where the reasonableness of the rate is not assailed and no question affecting the power or administrative policy of the interstate commerce commission is involved, and the controversy merely involves a question whether the carrier has exacted a rate in excess of that prescribed in its own published schedules, the state court has jurisdiction. To this effect are: W. L. Shepard Lumber Co. v. Atlantic Coast Line R. Co., 112 So. 323; G. W. Oil Co. v. C., M. & St. P. Ry. Co., 275 Ill. 56; Illinois Cent. R. Co. v. Henderson Elevator Co., [Ky. Ct. App.] 127 S. W. 779; Brass Works v. Southern Pacific Co., 187 Mich. 393; Reliance Elevator Co. v. Chicago, M. & St. P. Ry. Co., 139 Minn. 69; Wilson v. Long Island R. Co., 165 N. Y. Supp. 913; Hardaway v. Southern Railway, 90 S. C. 475; Payne v. White House Lumber Co., [Tex. Civ. App.] 231 S. W. 417; Lilly Co. v. Northern Pac. R. Co., 64 Wash. 589.
The record contains no error, and the judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is a proceeding in mandamus to compel defendant to comply with the terms of a city ordinance requiring it to con struct a subway under its elevated tracks at Waterman street. The trial court sustained a demurrer to plaintiff’s evidence, and it has appealed.
Douglas avenue in the city of Wichita is the principal east-and-west street of the city. In 1911, and for some time prior thereto, the tracks of four railroads — the Santa Fe, Frisco, Rock Island and Orient — traversed the city from north to south. These railroad tracks crossed Douglas avenue and other east-and-west streets of the city at grade. In 1911 the city enacted an ordinance, No. 4066, providing for the elevation of the through tracks of these railroads from Central avenue, the fourth street north of Douglas, to Gilbert street, the seventh street south of Douglas, counting the blocks as platted to the east of the railroad property. The grade of these two streets was to be raised and the grade crossings between them were to be eliminated. Subways were to be constructed under the elevated tracks at Douglas avenue and at the first and at the second streets north of Douglas, and a viaduct was to be built over the tracks at Kellogg avenue, the fourth street south of Douglas. To make it possible for the improvements contemplated by the ordinance to be made, portions of certain streets were vacated, among which was Waterman street, two blocks south of Douglas, for a short distance west of the Santa Fe right of way and Division street, now Waterman street, for a short distance east of such right of way. The ordinance contained many other provisions not necessary to be mentioned here. It was made directing the Santa Fe Railway Company to perform the work designated by the ordinance, which company appears to have acted for and on behalf of the four interested railroads. To carry out the provisions of the ordinance and make the improvements contemplated the four railroads above mentioned organized the defendant, The Wichita Union Terminal Railway Company. A union passenger station was built just south of Douglas avenue. The railroad companies abandoned their grade crossings on Douglas avenue. The Santa Fe constructed a freight depot south of Douglas and west of the elevated track, which was serviced by several freight and switching tracks from the south, the other three railroads having their freight depots east of the elevated track and south of Douglas, and these were serviced by a number of freight and switching tracks from the south.
By ordinances enacted in 1914 and 1915 the city undertook to re open those portions of Waterman street which had been vacated by ordinance No. 4066.
In 1926 the city enacted an ordinance, No. 9286, which declared it to be necessary for the convenience, safety and protection of the public that a subway and tunnel be constructed and a pedestrian and vehicular traffic way be opened through the elevated tracks of defendant at Waterman street, and directed and required the same to be constructed at the expense of defendant. The defendant declined to construct such subway, and this proceeding was brought.
There was evidence that since the elevated tracks, subways and viaducts were built the population of the city of Wichita has about doubled. The vehicular traffic on Douglas avenue is heavy, especially through the subway and west to St. Francis street, the first north and south street west of the subway, and at times is congested, a part of which congestion is due to the fact that automobiles are permitted to be parked on Douglas between the subway and St. Francis street; that in hauling freight from the depots east of the elevated tracks to wholesale houses on St. Francis street south- of Douglas it would be a convenience to have a subway on Waterman street. Plaintiff did hot specifically allege that there had ever been a street across the right of way of the defendant. Its engineer testified:
“Waterman street as it is now opened begins at the right of way fence on the east side of the terminal railway company’s property and extends east to the canal. On the west, the street commences at the Arkansas river and extends east to the elevation for the tracks.”
There was no evidence on behalf of plaintiff that the street ever extended across the railroad right of way. Because of that fact the trial court took the view that1 the city could not by ordinance compel defendant to open up a street through its right of way and to construct a subway through its elevated track at that point at great expense to itself and without compensation. In this view we concur. Cities are given authority to condemn private property for public use (R. S. 13-404), and the procedure for doing so, as applied to opening streets, is also provided by statute. (R. S. 26-201.) In doing this, damages incident thereto must be paid. (City of Osceola v. Chicago, B. & Q. R. Co., 196 Fed. 777.) See, also, Atchison, T. & S. F. Ry. Co. v. City of Shawnee, 183 Fed. 85; M. K. & T. Ry. v. Oklahoma, 271 U. S. 303. Plaintiff relies on the authority conferred upon cities by R. S. 12-1633 and 13-1903, but a reading of these sections discloses that they apply only when the railroad is upon or across a public street. Here the railroad had built its improvements on its own right of way and not upon or across any city street.
After the demurrer to the evidence was sustained the plaintiff filed a motion for a new trial, and in support of it an affidavit was filed by' one of its counsel, in substance, that after the trial certain old residents of Wichita had advised counsel that there had been traffic across the right of way of the defendant at Waterman street from 1884 down to 1896 or 1897. An order sustaining a demurrer to evidence is a ruling on a question of law. It is an appealable order, and it has been said that a motion for a new trial is neither necessary nor proper. (Schubach v. Hammer, 117 Kan. 615, 232 Pac. 1041.) There may be a -purpose for such a motion if plaintiff desires to offer, in the manner required by statute (R. S. 60-3004), evidence which had been excluded by the court at the trial. The motion in this case was not for that purpose. More than that, the city should know where its own streets are located. The question whether the city had a street across defendant’s right of way was so elemental and so necessary to establish plaintiff’s case that evidence to establish that fact should have been presented at the trial. Hence there was a lack of diligence. And, lastly, the facts stated in the affidavit, if uncontroverted, are insufficient to establish that such a street existed. (Oliphant v. Comm’rs of Atchison Co., 18 Kan. 386.) There was no error in the ruling on this motion.
Many other objections, somé of which seem to be well founded, are pressed against the ordinance and the procedure taken by the city, but we regard the point above mentioned as being so elemental and so controlling that it is not necessary to discuss others.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action to set aside a deed alleged to have been made to defraud creditors.
Defendants’ general demurrer to the amended petition was sustained and from that ruling plaintiff appeals. Before we determine the correctness of that ruling we shall first dispose of a preliminary question raised by appellees. They contend the appeal should be dismissed. The action had been dismissed by the trial court prior to notice of appeal without prejudice by reason of appellant’s failure to file its second amended petition within the time allowed. No appeal was taken from the order of dismissal. Appellees insist since appellant asked and was granted leave to file a second amended petition, they waived their right to appeal from the ruling on the demurrer: In support of this contention we are referred to Robertson v. Christenson, 90 Kan. 555, 135 Pac. 567; Miles v. Hamilton, 106 Kan. 804, 189 Pac. 926, and Cox v. Gibson, 125 Kan. 76, 262 Pac. 1030. In these cases the parties against whose pleading the demurrer was sustained elected to file a subsequent pleading. Having elected to supersede the former pleading, it was held they had acquiesced in the ruling and the ruling was therefore not subject to appellate review. In the instant case appellant did not elect to file a subsequent pleading, but instead, perfected an appeal from the ruling on the demurrer within the statutory time. This ruling was a final order which appellant was entitled to have reviewed. (R. S. 60-3302, 60-3303.) For a case involving similar facts, see Bringle v. Gale Township, 127 Kan. 115, 272 Pac. 126. Appellees cite decisions from other states dealing with the proper practice and procedure, under circumstances similar to those in the instant case. They appear to support appellees’ contention, but decisions from other states on practice and procedure are not controlling here.
It might have been well for appellant to have suggested a stay or continuance until the supreme court had determined the correctness of the intermediate appealable order. There would have been no impropriety in such suggestion. (Leslie v. Mfg. Co., 102 Kan. 159, 169 Pac. 193.) The fact, however, appellant did not make such suggestion or request does not preclude its right of appellate review.
A review of the order sustaining the demurrer to the amended petition requires examination of the pleading. The amended petition in substance states: Plaintiff’s principal place of business was Wetmore. The indebtedness represented by plaintiff’s judgment was created on and prior to September 20, 1924. The note on which the judgment was based had been renewed from time to time. Plaintiff was advised by defendant, Edwin Smith, at the time the indebtedness 'was created, and believed defendant was the owner of the real estate in question. Defendant held out to plaintiff and permitted it to act on the belief he was the owner. On September 20, 1924, defendant, Edwin Smith, executed a deed to his wife, conveying the land in question, without consideration and for the purpose of hindering, delaying and defrauding his creditors. The deed was recorded September 22, 1924. Plaintiff did not learn of attempt to transfer the real estate until about July 1, 1932. On November 13,1933, plaintiff obtained judgment on its note. Execution was issued and returned unsatisfied December 30,1933.
The action to set aside the deed was filed April 14, 1934. The demurrer was on the ground the amended petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants, or either of them. “Was the demurrer properly sustained? The answer must be in the affirmative.
R. S. 60-306 reads:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards . . . Within two years ... an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
The original note upon which the judgment was based was executed on or before September 20, 1924. The alleged fraudulent deed was executed on September 20,1924. It was recorded two days thereafter. There is no allegation that defendant, the grantor, did not own ample other property on the date of conveyance to satisfy the debt. Appellant had at least constructive notice of the conveyance for approximately nine years prior to his suit on the note. He did not reduce the note to judgment until November, 1933. How often appellant permitted the note to be renewed within that nine-year period does not appear. The allegation is the note was renewed from time to time. It'stands to reason it must have been renewed many times. For all that appears in the amended petition defendant had sufficient property during various renewal maturities, and even on the date suit was commenced on the note, out of which to satisfy the debt. What was done by appellant during these many years to collect the indebtedness? So far as the amended petition discloses., nothing.
On the other hand, if defendant, the grantor, had not retained sufficient property to satisfy the debt, what valid ground is alleged for the long delay in obtaining judgment? None. The amended petition simply alleges the bank did not learn of the attempt to transfer the property until July, 1932. That was a period of almost eight years after the recording of the deed. For the purpose of the 'demurrer it is admitted appellant did not have actual notice of the fraud but had constructive notice of at least the execution of the deed since February, 1924. Notwithstanding such notice, the bank renewed the note from time to time over the course of approximately nine years without taking any steps to reduce the note to judgment. Nothing is pleaded which would relieve or tend to relieve it from this unreasonable delay.
Appellant insists its cause of action to set aside the deed did not accrue until it obtained judgment on the note and execution was returned unsatisfied. (National Bank v. Walters, 129 Kan. 49, 281 Pac. 868.) Supposing that be conceded to be the general rule, it does not follow appellant could delay indefinitely reducing the note to judgment.
In the case of Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, this court discussed the subject of constructive notice of execution of a deed and constructive notice of the fraud resulting from the recording. It was there said:
“An action by a creditor to set aside as fraudulent a deed made to his debtor’s wife, and to subject the property to the payment of his debt, is ordinarily barred in two years from the time the deed was recorded, where the creditor knew of the execution of the deed at the time it was made but supposed that it named his debtor as grantee. The fraud is deemed to have been discovered whenever in the exercise of reasonable diligence it might have been discovered, and in such a case reasonable diligence required an examination of the record, which would necessarily have disclosed the fraud alleged. While the action referred to could not be brought until the claim was reduced to judgment, the running oj the statute oj limitations could not be indefinitely postponed by the delay oj the creditor to begin proceedings jor that purpose, and such delay could in no event exceed two years without resulting in a complete bar to the action.” (Syl.) .(Italics inserted.)
The necessity of proceeding with reasonable diligence to obtain judgment was again before this court in the case of Young v. Buck, 97 Kan. 39, 154 Pac. 213, and again later on motion for rehearing, 97 Kan. 195, 197, 154 Pac. 1010. In the last opinion it was held:
“Although during the pendency of an action for the recovery of money the defendant makes a conveyance of real estate, which is at once recorded, the circumstances being such as to charge the plaintiff immediately with notice of its execution and of its fraudulent character, the statute of limitation (requiring actions for relief on the ground of fraud to be brought within two years from the discovery of the fraud) does not begin to run against an action to subject the land conveyed to the payment of the plaintiff’s claim until judgment has been rendered in the original action, provided it is prosecuted with reasonable diligence.” (Syl. ¶ 1.) (Italics inserted.)
In the case of Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732, the suit on the note was brought more than two years after the execution and recording of the alleged fraudulent deed. It was held the action was not barred, but it must be observed the note which formed the basis of judgment in that case had not matured until three days before suit was commenced on it. This court said:
“The contention that the action w7as barred by the statute of limitations cannot be upheld. The ground advanced is that the conveyance was executed and recorded more than the statutory period of two years before the action on Semke's note was begun. This action to set aside the conveyance did not accrue until that note was reduced to judgment. There was no unreasonable delay in suing on the note, nor in bringing this action after judgment was obtained. The note did not mature until March 14, 1917, and the action thereon was brought on March 17, 1917, and judgment was recovered on January 8, 1918. This proceeding was brought on April 8, 1918, and as the cause of action pleaded did not accrue until the judgment on the note was rendered, it was well within the statutory period of limitation. (Young v. Buck, 97 Kan. 195, 154 Pac. 1010.)” (p. 631.) (Italics inserted.)
In a note in 76 A. L. R. 877 the rule is stated thus:
“The procuring of judgment cannot, however, be delayed unduly, the creditor being required to proceed with ordinary diligence; his delay cannot indefinitely postpone the running of the statute of limitations.”
Counsel for appellant insist the judgment must be reversed on the authority of National Bank v. Walters, 129 Kan. 49, 281 Pac. 868. The contention is untenable. On the precise point of necessity for diligence on the part of the creditor in taking the necessary preliminary steps to qualify him to set aside the conveyance, it was said:
“A creditor having knowledge, of his debtor’s fraudulent conveyance must not unduly delay taking the steps necessary to qualify him to set the conveyance aside and, as indicated, the bank was charged with laches in reducing its claim to judgment.” (p. 50.)
That principle was applied to the facts in the Walters case. The facts in the Walters case differ materially from those in the instant case with regard to the exercise of diligence in obtaining judgment. It is not necessary to enumerate all the facts in the Walters case in order to distinguish that case on the particular point at issue. In the Walters case the question whether a prior $30,000 note was valid had been in litigation instituted by the debtor. That action was finally dismissed without prejudice, and pursuant to the dismissal and an agreement Walters and others liable on the note each executed separate and individual notes for $3,000. The extension of time in which to pay the $3,000 note was inconsequential, being for only about thirty-nine days. After maturity of the $3,000 note the bank made various efforts to collect the note without suit. Conferences with Walters resulted in prospects of settlement. After a futile last interview the bank brought suit on the note within less than six months. This was within fifteen months after the maturity of the note. The decision in the Walters case can under no possible interpretation be construed to justify a nine-year delay in obtaining judgment. It is authority for precisely the contrary.
The judgment of the trial court sustaining the demurrer to the amended petition must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This is an action in ejectment. Defendant answered and sought to quiet his title. It was tried to the court, judgment was for defendant, and plaintiff has appealed.
The facts as disclosed by the record and statements of counsel are as follows: The plaintiff is defendant’s sister. Their father, J. N. Myers, was the owner of quite a tract of farm land in Wyandotte county on which he had lived for many years and reared his family. In 1916 J. N. Myers, being then a widower, executed four deeds, one to each of his four children, conveying to each certain described land then owned by him. Collectively these deeds conveyed all the land owned by him except about fifteen acres. In form they were warranty deeds, but contained a clause by which the grantor reserved the rents and profits of the land during his lifetime, and also contained this clause: “This deed is delivered, but it is not to be recorded until after the death of the grantor.” Plaintiff, the youngest child, had not then reached her majority, and was living at home with her father. She married in 1918, and she and her husband lived at the old home place with her father until sometimé in 1920; then some discord arose and she and her husband moved away. The father continued to live at the old home place until his death, March 6,1925, and for the last year or more before his death took his meals at the home of his son, the defendant, who lived on land adjoining the old home place on the north, which had been conveyed to him by the deed of his father in 1916.
The deed to plaintiff was recorded March 11, 1925. It conveyed to her the old home place, being a tract of about 48 acres, which was specifically described by metes and bounds. Plaintiff claims under this deed.
On August'19, 1924, J. N. Myers executed to the defendant a general warranty deed for three small tracts of land, describing them by metes and bounds. One of these tracts was 25 feet wide by 204 feet long, another was 100 feet by 284 feet. These two tracts constituted a part of the yard or garden of defendant as the same was then being used by. him. A third tract was a roadway 16 feet wide leading across the old home place from the residence of defendant north thereof to a main highway south of it. This particular strip had been used as a private driveway for many years and passed between the house and the barn on the old home place. This deed- was recorded August 19, 1924. All of the land described therein was within the description of the deed from J. N. Myers to plaintiff. The defendant claimed title to it by reason of the deed of August 19,1924. The action here is for the possession of these three small tracts of land.
Appellee in the main seeks to sustain the judgment of the trial court under our registry statutes, and especially R. S. 67-223, which reads:
“No such instrument in writing shall be valid,-except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.”
Appellant contends that this statute, as it has been heretofore construed, does not sustain the judgment of the trial court, for the reasons: First, that appellee cannot take advantage of that statute without showing that he was a purchaser for a valuable.consideration of the tracts of land in' controversy, which he did not show-in fact, his evidence was to the contrary; and, second, that the trial court misconstrued the words “actual notice,” as used in the statute. Both of these contentions must be sustained.
As to the first of these contentions it may be said: Our original registry act (Laws 1859, ch. 30, § 13) provided:
“No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration without notice, unless recorded ...”
Construing this statute in Coon v. Browning, 10 Kan. 85, it was held: “Priority over an unrecorded deed could be claimed only by a purchaser for a valuable consideration.” That is, one to be within the benefit of the statute must in fact have been a purchaser of the real property in question for a valuable consideration and without notice of the prior unrecorded deed. In 1868 our registry act was amended and chapter 30 of Laws of 1859 repealed by chapter 22 of the General Statutes of 1868, section 21 of which has since remained unchanged and is our present R. S. 67-223. It may be noted that this amended statute does not use the phrase “for a valuable consideration,” as did the statute of 1859. However, in view of the general purpose of registry laws and other sections of the statute relating thereto, it has been held that this section can be taken advantage of only by those who are purchasers, or who have acquired liens for a valuable consideration and without actual notice of the prior unrecorded instrument. See Holden v. Garrett, 23 Kan. 98; Morris v. Wicks, 81 Kan. 790, 106 Pac. 1048; and Kruse v. Conklin, 82 Kan. 358, 108 Pac. 856, where it was specifically held: “An unrecorded conveyance of real estate is good except as against a person who purchases without notice thereof and for a valuable consideration.” The general purpose of the recording act is stated in Gibson v. Uppenkamp, 83 Kan. 74-78, 109 Pac. 781, as “to impart notice to creditors and purchasers”; and in the specially concurring opinion in Faris v. Finnup, 84 Kan. 122, 128, 113 Pac. 407, it was said: “The object of the recording act is to protect those who deserve protection . . .” In School District v. Taylor, 19 Kan. 287, and in Gibson v. Uppenkamp, supra (p. 79), it is pointed out that the specific section of the registry act under consideration cannot in all cases be literally construed, and should not be construed apart from the purpose for which registration laws are enacted.
Applying this statute, and the interpretation heretofore given to it by this court, to the case before us it is clear that defendant cannot avail himself of this section of the registry act without showing that he was a purchaser, for a valuable consideration, of the three tracts of land in dispute. It is further clear that evidence on his behalf fails to show any consideration for the deed to him of August 19, 1924. The deed recites a consideration of one dollar, but there is no evidence even that was paid; but if it was it would constitute only a nominal consideration as distinct from a valuable consideration. (Morris v. Wicks, 81 Kan. 790, 792, 106 Pac. 1048. See, also, page 794 as to the testimony concerning the consideration.) In. this case, with respect to actual consideration for this deed, the defendant testified:
By Dependant’s Counsel: “Q. He has called for your conversation; at the time your father and you came to the city when this deed was made and recorded, was there anything further said to you by your father as to why he was giving you this deed? . . .
“Q. State what he said, if there was anything said about it. A. He said ‘You have been good to me, and I want you to have all of your yard and the ground east of your house and that road permanently.’ ”
This tends to establish that this deed was a pure gift.
As to the second question, that the trial court misconstrued the words “actual notice” as construed in the statute (R. S. 67-223), this contention is based upon a statement of the trial court at the trial which indicated that defendant’s deed would be good against the deed to plaintiff unless the defendant, at the time he took his deed, had “actual knowledge” of the deed to plaintiff. This construction of the statute is inaccurate. The statute uses the words “actual notice.” Such actual notice may be expressed or implied. In Pope v. Nichols, 61 Kan. 230, 59 Pac. 257, it was said:
“The words ‘actual notice’ do not always mean in law what in metaphysical strictness they import. They more often mean knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.”
And in Faris v. Finnup, supra, it was held:
“ . . . actual notice may be expressed when it consists of knowledge actually brought personally home, or it may be implied when it consists of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. In the latter case the known facts must be sufficiently specific to impose the duty to investigate further, and they must furnish a natural clue to the ultimate fact.” (Syl. ¶[ 1.)
In this case the evidence disclosed that defendant knew that his father, in 191.6, had made deeds to his several children of specific tracts of real property, and that such deeds were not to be recorded until after the death of the grantor. He knew that a deed had been made to the plaintiff, and about the time, or soon after, she and her husband moved from the old home place he interested himself enough in plaintiff’s rights under such deed to inquire of her if she had got her deed, and to say to her that if she had not received her deed that she had better get it. He knew that the three' small tracts of land in question had not been conveyed to him by his father’s deed executed in 1916. Considering these facts and the relationship of the parties, as disclosed by the evidence, the appellant, with much reason, argues that actual notice of plaintiff’s deed and its contents was implied within the authorities last cited. Defendant was in possession of facts which would cause a prudent man to think that in all likelihood his father had conveyed to some one of his other children land including the three tracts in question, and he could have ascertained the truth about that matter by an inquiry either of his father or of his sister, the plaintiff.
Appellant is correct, also, in the contention that before defendant could claim the benefits of R. S. 67-223 the burden was on him to prove the facts which brought him within the purview of the act. (Kruse v. Conklin, supra. See, also, Perkins v. Gregory, 87 Kan. 303, 124 Pac. 168, where a similar ruling was made, construing another section of our code.)
With respect to^the execution of the deed to defendant, appellant seeks to invoke the rule of the necessity of independent advice, as was applied in the making of a will in Flintjer v. Rehm, 120 Kan. 13, 17, 241 Pac. 1087, and as applied to the execution of a deed in Madden v. Glathart, 125 Kan. 466, 265 Pac. 42. But an examination of those cases discloses that the rule there applied is not appli cable here. However, all the facts and circumstances, including the relations of the parties, are proper to be considered on the question of whether defendant had actual notice, as required by R. S. 67-223, of plaintiff’s deed, as that term has been defined in the cases previously cited.
Appellee contends that the deed under which plaintiff claims was a gift from a father to a daughter. Even if this contention were correct it has no effect on this case, for plaintiff is not seeking to establish her title by reason of the registry act. Appellee lays much stress on the fact that the tract of ground in controversy, which constitutes the road from his dwelling out to the main traveled road, is his only outlet, and argues that he is entitled to that, at least, by reason of the conveyance tó him of the land north of the home place and the fact that this private road had for years been used as a way from his residence to the main road. This argument lacks merit for two reasons: First, appellee is claiming under the deed of August 19,1924. Second, the father, when he executed the deeds in 1916 to his children, excluded from the deed to plaintiff a tract twenty-five feet wide along the north line of the land from defendant’s improvements to the main traveled road to the west, and included this twenty-five feet in the deed which he executed to defendant, thereby giving him a way to the main traveled road.
From what has been said it necessarily follows that the judgment of the court below should be reversed, with directions to enter judgment for plaintiff.
It is so ordered.
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'The opinion of the court was delivered by
Hutchison, J.:
The only question involved in this action is whether or not the children of the plaintiff live three or more miles, iby the usually traveled road, from the school they attend. The trial court found they lived more than three miles from the school, and rendered judgment for the plaintiff and against the defendant school district for |200 as compensation for the conveyance of them to the school. From this finding and judgment the school district appeals on the sole question of distance, the controversy being over the correct starting and concluding points of the measurement.
The appellant contends that a reasonable, fair and practical construction of the statute requires the measurement to be along the usually traveled road from a point in the center thereof in front of the residence of the children conveyed to a similar point in front of the schoolhouse where the children attend, which is conceded to be less than three miles. The distance from the door of the residence by the usually traveled road, as far as possible, to the door of the schoolhouse is conceded to be more than three miles.
R. S. 72-601 is the section under which this compensation is allowed and the portion-of it which requires construction and application in this case is as follows:
“Said district board shall provide such transportation for pupils who live three or more miles, by the usually traveled road, from the school attended; or, in lieu thereof, said board shall allow, as compensation for the conveyance of pupils to and from the school to the parent or guardian of any pupils living three or more miles from the school attended, a sum not less than fifteen cents per day.”
Appellant insists that by the use of the words “by the usually traveled road” the legislature necessarily referred to the distance on and over such road, and supports this contention by reference to the provision immediately preceding this language, where the district may provide such transportation by bus or otherwise, and if it did so furnish transportation it would only be from the center of the road in front of the door of the residence to a point in the road in front of the schoolhouse door, arguing that the remaining distance, whether short or long, would have to be covered by the pupils by walking or otherwise. In the same connection it is said that if the bus did not come nearer to the residence than the crossroads the children would only be transported from such crossroads. The starting and stopping points for transportation by a public bus would be matters of convenience only, and certainly not determinative of distance. If it only came to the crossroads it might or might not meet the requirement of the statute. The expression, “by the usually traveled road,” means to distinguish between such road and any other road that may sometimes or occasionally be traveled, and does not mean that the entire distance must be traveled on such road if the road doesn’t go the entire distance or connect the two places. One of the measurements submitted in the evidence was by vehicle transportation from door to door, each end of which being over a private driveway, and it was more than three miles.
The statute provides transportation or compensation in lieu thereof for pupils who live three or more' miles from the school attended. Where do these pupils live? Certainly not in the middle of the road; neither do they attend school in the center of the road in front of the schoolhouse. Another measurement submitted was from gate to gate. It can as truthfully be stated that they do not live at, the front gate nor attend school at the gate. Children live in the house which they call their residence, and that may be in the center of a cattle ranch or pasture, a half mile or more from the public highway, and there is no good reason for not measuring that distance over a private driveway or private walk if it is the usually 'traveled road from that house to the school.
We have examined all the citations of the appellant on the question of reasonable construction, and agree with all of them, but think the reasonable construction of the statute here under consideration requires such measurement to be from the house where the pupils live to the school where they attend, and such entire distance to be by the usually traveled road between the two places. There is a usually traveled road from every private dwelling to the public highway, although the travel over it may be limited to the family; it is for them such a road nevertheless.
No specific authorities as to points of beginning and ending such measurements have been cited by either appellant or appellee, nor have they referred to any explicit precedent, but both parties urge a determination to be based upon a reasonable construction of the statute involved. We have no hesitancy in concluding that the evident intent of the legislature in this enactment was the actual distance from the residence to the schoolhouse by the usually traveled road and that the language of the statute does not justify the conclusion by reference to the road that the distance was to be limited to that which was over or along some public highway.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action under the workmen’s compensation act. The commissioner of compensation found for the claimant, awarding compensation. The employer appealed to the district court, where the case was heard on the record made before the commissioner. The district court found for the claimant and awarded compensation. The employer appeals.
The facts with which we are concerned are simple. The respondent is engaged in the business of drilling for and producing oil and refining it. It is also engaged in the operation of filling stations in the state for the purpose of selling its products to the public. One of these stations was located at .Third and Jackson streets in Topeka. The husband of claimant was injured during the course of his employment at this station. His injuries resulted in his death.
At the hearing before the commissioner, respondent argued that deceased was not an employee of respondent and that the work he was doing when he was injured was not under the act. In the brief in this court respondent abandons its first defense and relies wholly upon the second. We are only concerned then with the contention that the employment in which the injured employee was engaged was not under the act. The position of respondent is that the work at which the workman was engaged was not any of those covered in R. S. 1933 Supp. 44-505. This act is, in part, as follows:
“That this act shall apply only to employment in the course of the employer’s trade or business in the following hazardous employments: railway, motor transportation line, factory, mine or quarry, electric, building or engineering work, laundiy, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, each of which employments are hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein are inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen. . . . Provided, That employers whose work, trade or business is not such as described and included in this section of this acit, and employers commencing or renewing in this state any work, trade or business, may elect to come within the provisions of this act by filing with the commission a written statement of election to accept thereunder and such election shall be effective when so filed, and such election shall continue in effect unless and until such employer thereafter desiring to change his election shall do so by filing a written declaration thereof with the commission, and the employee of any such employer so filing such election shall be included herein unless such employee elects not to come within this act as provided by section 51 of this act, and if the employee of such employer elects not to come within the provisions of this act, as herein provided, such election shall continue in effect unless and until such employee thereafter desiring to change his election shall do so by filing a written declaration thereof with the commission.”
The argument is that since filling stations' are not named, in the above section and since filling stations do not come under the definition of “factory” as contained in R. S. 1933 Supp. 44-508 (b) or “engineering work” as defined in R. S. 1933 Supp. 44-508 (g) then the employment in one is not covered by the act.
The claimant points out that the respondent is engaged, among other things, in operating refineries in Kansas for the purpose of refining gasoline from crude oil. There is no doubt that this is an employment that comes under the act and that the maintenance of the filling stations is the method used by respondent to sell the product of its refineries to the public. It is argued that the business of respondent must be viewed as a whole and that when thus viewed all of the employees of respondent are under the act whether they are employed in the refinery or in the retail department of the company. This view was adopted by this court in the case of Pegg v. Postal Telegraph-Cable Co., 129 Kan. 413, 283 Pac. 58. In that case the business of the employee was delivering messages from person to person. This was done by picking up a message, taking it to the office, putting it on the wire, receiving it' at the destination and delivering it to the addressee. Part of this work was done by means of telegraph instruments and wires and consequently was electrical work and under the act. The other work mentioned was that of a messenger boy who walked or rode a bicycle and carried the message from the telegraph office to the addressee. This court held that this work came under the act even though the messenger boy did no electrical work at all.
This court had the question under consideration in the case of Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536. The injured employee in that case was a traveling salesman for a packing house. This court held:
“A traveling salesman for a packing house was employed to solicit orders for goods and make collections from customers in an allotted territory, including several counties, and to travel over the territory in an automobile in the performance of his duties. While traveling over a highway he came in contact with a wire of high voltage and was killed. Compensation was claimed under the workmen’s compensation act. It is held under the evidence that his death occurred within the allotted territory and in the course of his employment.” (Syl. If 1.)
To the same effect is Woods v. Jacob Dold Packing Co., 141 Kan. 363, 41 P. 2d 748. We are unable to perceive any distinction between the case at bar and the above case. No doubt the employee of respondent working in one of its filling stations was performing a necessary part of the work in getting the product of the refinery from crude oil in the ground to the gasoline tank of the motorist. The work at the refinery would not be of much worth to the employer if none of its products finally reached the consumer. Respondent in this case has adopted the method of doing business of refining its gasoline and. selling it to the retail trade by means of filling stations. Having done this, all of its employees, whether engaged in work at the refinery or in the work of selling the gasoline to the public, are under the workmen’s compensation act.
The judgment of the trial court is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Btjrch, C. J.:
Defendants were convicted of forcible rape, and appeal.
The victim was eighteen years old. Deruy was thirty-two years old, and Higgins was twenty-seven years old. Both had criminal records, and evidently were sexual perverts. When Higgins alone was unable to conquer the victim, he held her while Deruy ravished her, and then Deruy held her while Higgins ravished her. She was then returned to the vicinity of her home, where she was admonished by defendants that if she told what had occurred, they would kill her. As a result of her mistreatment, she contracted a venereal disease.
In the brief, defendants argue two propositions based on the same premise, that defendants were not represented by qualified counsel. The propositions are stated as follows:
“1. The defendants were not represented by counsel qualified to practice law as provided in the constitution of the state of Kansas in the bill of rights, and that the court permitted one not admitted to practice in the supreme court or inferior courts to appear as counsel for the defendants.
“2. That evidence and testimony was permitted to be introduced by the court which substantially prejudiced the rights of these defendants and which, if properly objected to by competent counsel, would have been excluded, or which if the court, considering the defendants were represented by one not admitted to the practice of law should have excluded on his own motion in the protection of the rights of these defendants.”
The facts are these: At the preliminary examination the defendants were represented by an attorney of this state, who at the time of trial had become county attorney, and who did not participate in the trial. The trial occupied parts of two days. The record shows that on the first day, when defendants were arraigned and subsequently, they were represented by Wayne Phelps, who was a qualified attorney of this state, and by Olin Biggs. The state closed its case at 4:35 o’clock in the afternoon. The opening statement for defendants was made by Biggs, and defendants introduced evidence until 5 p. m., when court adjourned until 9 a. m., the following day. When court reconvened, defendants introduced evidence until 9:45 a. m., when they closed their case. The state introduced rebuttal evidence, the court instructed the jury, the case was argued, and the case was submitted to the jury before noon. Phelps was not present the second day.
Biggs was a Missouri lawyer. He was forty-one years old, was admitted to practice before the supreme court and all inferior courts of the state of Missouri on July 15,1918, and for many years before trial of this case had been engaged in active practice of law in Missouri. In January, 1935, Biggs made application for admission to practice in this state. The application was held under advisement until June, and on June 17,1935, he was formally admitted to practice in this state.
. The trial occurred on June 4 and 5,1935. On June 6, Deruy filed a motion for new trial, signed by Robert S. Lemon, an attorney of this state, who represents him here. The tenth ground of the motion was, that Deruy did not have the aid of counsel when arraigned or during the trial. On June 7 Biggs filed a motion for new trial on behalf of Higgins, containing thirteen grounds. The thirteenth ground was the same as the tenth ground of Deruy’s motion. The motions were heard on June 29,1935, after Biggs had been admitted to practice in this state. The record does not show that any evidence was introduced in support of the motions. The motions were denied, and on the same day, sentence was regularly imposed.
The result of the foregoing is, defendants were, in fact, represented at every stage of the case by attorneys admitted to practice law in this state, except that for a time during the forenoon of June 5 they were represented by Biggs alone. Biggs was a lawyer of experience, who would have been recognized by the court, on request, for purpose of the trial. The record does not show that any of the evidence of which complaint is now made was introduced on the second day of the trial. No complaint is made of the court’s instructions to the jury, and Biggs’ sole fault appears to have been that he did not make as many objections to the introduction of evidence as Mr. Lemon would have made had he been trying the case. Sometimes it is a part of the strategy of the defense not to make too much fuss about details in the trial of a nasty case.
The evidence admitted without objection will not be reviewed. Defendants suffered no prejudice to their substantial rights, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dennison, J. :
A motion has been filed in this court asking us to dismiss this case. We will first pass upon the motion. The defendants in error contend that we have no jurisdiction to review this case, for the reason that no legal case-made or transcript is attached to the petition in error. The case-made fails to show notice tó the defendants in error or their attorney of the time of settling and signing the case or their presence at said time, or a waiver of the suggestion of amendments. The plaintiff in error has filed the affidavit of G. W. Nimocks, one of his attorneys, in which he says that C. F. Foley, the attorney for the defendants in error, at the request of said Nimocks, presented the case to the judge, and after it was settled and signed it was sent to him at Great Bend by said Foley. He attaches to his affidavit the following letter :
“Lyons, Kan., April 14, 1891.
“G. W. Nimocks & Bro., Great Bend, Kan.:
“ Gentlemen — Your favor of recent date received. I will have case settled and signed in a day or two, and will express it to you as requested.
Very respectfully,
C. F. Foley.”
The defendants in error file the affidavit of C. F. Foley, their attorney, in which he states that the case was properly served, and that he dictated the letter attached to Nimocks’s affidavit; that the said case was not settled in a day or two after writing said letter, but that he does not now recollect why it was not done (the record shows it to have been settled and signed on April 24, 1891, 10 days after the letter was written) ; that he did express the case-made to some one of the plaintiff’s attorneys at Great Bend, he thinks to Nimocks; that no notice of the time of settling the case had been served upon him, and that he has no recollection of being present at the time of settling the case. From these affidavits it appears uncontradicted that the case was served in time on Foley, and while it was in his possession he promised to present it to the judge for settlement, and then send it to the attorneys for plaintiff in error. He sent it to them by express, and when they received it, it was signed and settled. The irresistible conclusion is, that the case was presented to the judge by Foley, and that he was present when it'* was settled and signed. The question, then, is, must these matters be incorporated into the record itself, or can they be shown by extrinsic evidence? This relates to a question of practice, and justice would dictate that, if it can be clearly established by any method that the opposite party was actually present, or had notice of the time and place of settlement, or had waived amendments, the case should be decided upon its merits. The practice in the supreme court seems to be, that where nothing is shown to the contrary, the record must affirmatively show that the necessary duties devolving upon each litigant prior to the settling and signing of the case-made have been per formed, but where the record fails to show such performance it may be shown by extrinsic evidence. In Jones v. Kellogg, 51 Kan. 263, and in Roser v. National Bank, 56 id. 129, 42 Pac. Rep. 341, it is held that all matters relating to the merits of the case must be shown by and embodied in the case-made itself, and cannot be shown by any other or by extrinsic evidence, but other matters or things to make the case reviewable may generally be shown by extrinsic evidence, or, in other words, by evidence outside of the case-made. In the case of Safford v. Turner, 53 Kan. 729, the affidavits filed by the attorneys flatly contradicted each other, and the court dismissed the case, and very properly criticised and condemned the practice of leaving these matters out of the record and relying upon such outside evidence to establish them. In the case at bar, we think the presence of the-defendant in error at the time and place of settling and signing the case is clearly shown by the affidavits, and we will consider the case upon its merits. By do-r ing so we believe no injustice is done to either side. Should we refuse to do so, we believe an injustice would be done the plaintiff in error.
This is an action brought in the district court of Barton county, Kansas, by the plaintiff in error against John C. Rowlinson, S. H. Ryker, and W. A. Giles, as defendants, upon a promissory note for $627.70, dated November 1, 1888, due April 17, 1889, with interest from maturity at.the rate of 12 per cent, per annum. Said note was executed and delivered by said defendants to the plaintiff in error, The Bank of Claflin. W. A. Giles, guarantor, made no defense, and judgment was taken against him by default; hence he is not in this court. Defendants in error admit the exe cution of the note, but allege a failure of consideration. They allege that on or about October 17, 1887, they executed to one Jacob Knupp their promissory note for $500, payable in one year, bearing 10 per cent, interest from date ; that on said date, contemporaneous therewith, and as a part of the same transaction, said Knupp entered into an agreement with said Rowlinson by which said Rowlinson gave said Knupp the said note of $500 and a team of mules valued at $300 for certain real estate in Rice county, Kan., subject to mortgage of $450; that said Knupp should have the right to sell the real estate at any time during the year, and should receive as his commission, if he made such sale, two-thirds of what he obtained for it over $1,100 ; if at the expiration of one year said real estate had not been sold, said Knupp agreed to repurchase the same for the sum of $1,100, and said note of $500 and the interest thereon should be taken as so much of a payment on it. They also allege that the real estate has not been sold ; that Knupp had refused to repurchase it, and the defendants have been damaged in the sum of $800, which sum they would be entitled to set off against the note if suit had been brought by Knupp; that the plajntiff took the note with full knowledge of the above contract and defense, and gave no consideration to Knupp for the note, and that the only consideration for the note of $627.70 was the renewal of the $500 note given to Knupp; that said Knupp indorsed, transferred and delivered the said note to the plaintiff as collateral security, and his debt has been fully paid to said plaintiff by the proceeds of a sale of personal property belonging to said Knupp. The case was tried with a jury, and they returned special findings of fact and a general verdict for the defendants. Judgment was rendered on the general verdict against the plaintiff, and it brings the case.here for review.
We will discuss the rights of the parties to this transaction before we consider the errors complained of. As between the defendants and Knupp, it is evident that Knupp gave a consideration for the note. He gave the title to the real estate, subject to the $450 mortgage, and the contract to repurchase the same, for the note and the mules. Had Knupp brought suit upon the note, the defendants could haye set up the contract and the breach thereof as an offset to the amount to be recovered thereon. Is the bank entitled to any greater rights than Knupp would have had? If it was the owner and holder of the said note before maturity without knowledge of the defenses thereto, it would be entitled to recover the full amount thereof. The jury, in their special findings, found that the $500 note was assigned to the plaintiff to secure overdrafts and for current indebtedness which might accrue to the bank in the course of business, and that at the time of said assignment the plaintiff did not know of any defense which defendants might have to said $500 note ; that at the time the note for $627.70 was given by the defendants to the plaintiff there was an overdraft of Knupp and Simpson due to plaintiff, for the payment of which the $500 note was assigned as collateral security; and that there was no evidence showing that the defendants were ignorant of any material fact which would constitute a defense to said note. Upon these findings, it is obvious that the plaintiff is entitled to recover at least the amount of the balance of the claim for which the $500 note was assigned as collateral security. If the defendants had no defense as against Knupp, the plaintiff could have recovered the whole amount, although it might not have been entitled to apply-to its own use the whole proceeds. (Williams v. Norton, 3 Kan. 295.) They could have applied to their own use the amount of their claim against Knupp for which the said note was collateral, and must have answered to Knupp for the balance. We think, therefore, that from the facts established by the special findings of the -jury, the plaintiff was entitled to recover upon said note the amount of the balance of its claim against Knupp for which it was assigned as collateral” security, and of any balance remaining the defendants were entitled to offset their damages for the breach of the contract of Knupp and the costs of suit, and if any balance remains it should be added to the amount for which the bank is entitled to judgment.
The defendants in error contend that there is no evidence tending to show whether the $500 note was payable to order or bearer, and, if payable to order, that it had been indorsed by Knupp to the plaintiff. While this may be true, the deficiency is abundantly supplied by the answer of the defendants. In the fifth paragraph thereof they allege “that said Knupp indorsed, transferred and delivered the said note to the plaintiff,” etc. They cannot now be heard to deny it. It will be seen from the view of this case -expressed herein, that the special findings of the jury are not in harmony with the general verdict, and at the same time they are not so complete that the court could render a judgment on the special findings. A new trial should have been- granted, and it was error to overrule the plaintiff’s motion therefor.
We deem it unnecessary to consider the different assignments, of error in detail; they are sufficiently explained in this opinion.-
The judgment of the district court is reversed, and the case remanded, with instructions to grant the plaintiff a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
GrABVER., J. :
The only act of negligence, under the evidence and findings of the jury, attributable to the railway company is the running of the train which inflicted the injury at a rate of speed prohibited by the ordinances of the city in which the accident occurred. The allegation that warning signals of the approaching train were not given falls to the ground in the face of the finding of the jury that they cannot determine whether or not such signals were given. As it devolved upon the plaintiff to prove that fact, if it existed, such a finding negatives its existence for the purposes of this case. (Morrow v. Comm’rs of Saline Co., 21 Kan. 484.)
At the time of the accident, the city ordinances prohibited the running of railroad trains in said city at a greater speed than six miles an hour. The train in question was being run at a greater speed than was allowable, but what the actual speed was the jury-does not say. It is not disputed that a city may, by ordinance, regulate the speed of trains within its limits. It also seems to be a well-settled rule that a violation of such municipal regulation is' negligence per se. (A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77; Mo. Pac. Rly. Co. v. Pierce, 33 id. 61; Karle v. Railroad Co., 55 Mo. 476; Baker v. Railway Co., 68 Mich. 90; Railroad Co. v. Voelker, 129 Ill. 540; Correll v. Railroad Co., 38 Iowa, 120.) Upon this feature of the case, the trial court instructed the jury as follows:
“9. It is negligence on the part of a railroad company to run its trains through a city, incorporated town or village at a rate of speed prohibited by the ordinances of said city, and if a railroad company does so run its trains, and thereby causes injury to a person who is himself in exercise of reasonable care and caution to avoid injury, the company will be liable.”
It is contended that this instruction was misleading and erroneous — that it virtually directed the jury to return a verdict against the defendant, if they found that train was running at a greater speed .than six miles an hour at the time it struck the plaintiff. In this particular instruction, the court selected a single fact from the evidence, and attempted to state to the jury how it might be made the basis of a right to recover damages. There is always danger in such practice that other essential facts will be overlooked which should be taken into consideration. The act thus conclusively condemned as negligent, and properly so, is of a presumptive or technical character. In this case, the excessive speed of the train may in no manner have contributed to the injury, and, there fore, may have been an entirely immaterial circumstance in the determination of legal liability. Although thus negligent, the company would not be liable unless the proximate cause of the injury was the unlawful speed of the train. (A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77; Pennsylvania Co. v. Hensil, 70 Ind. 569; Railway Co. v. Loomis, 13 Ill. 548; Railway Co. v. Wellhoener, 72 id. 60; Railroad Co. v. Stebbing, 62 Md. 504; Stoneman v. Railroad Co., 58 Mo. 503.) The mere fact that the plaintiff was struck by the train which was running at the rate of. 8, 10 or 12 miles an hour, and was thereby injured, would not prove that the unlawful increase of the speed of the train was the proximate cause of the injury. It does not necessarily follow that the same accident would not have happened had the speed of the train been within the lawful limit. The court applied this rule in the instruction concerning a failure to ring the bell of the engine, as required by the city ordinances. After giving upon that subject substantially the same instruction that was given as to the speed of the train, the court said:
‘ ‘ The neglect of ringing the bell of an engine while passing through a city, incorporated town, or village, in violation of its ordinances, is not of itself such negligence as will justify a recovery of damages to a person injured upon the track; to entitle the plaintiff to recover for such injury,- it must appear from the evidence that the injury was the result of such omission to ring the bell.”
The court neglected to add a similar qualification with reference to the speed of the train, and thus, by contrast with the other instruction, emphasized the objectionable feature of the one of which complaint is made. In the absence of such qualification, we think it is open to the objection that its natural tendency was to mislead the jury to think that the negligent running of the train at an unlawful speed was, of itself, sufficient to fix the liability of the company, without any inquiry to determine whether such violation of the ordinances was the proximate cause of the injury.
Counsel for plaintiff in error next urge, with much force and earnestness, that the findings show such contributory negligence on the part of the plaintiff as precludes any recovery by him, even conceding that the trainmen were also negligent. If the plaintiff had been a person of maturer years and judgment, this contention of counsel would have to be sustained. The plaintiff attempted, apparently, to cross the railroad-tracks without looking or listening with such care as is required of a foot traveler under similar circumstances; and, had he looked, he must have seen the danger of any such attempt. It is the duty of a person about to cross a railroad-track to look and listen for approaching trains; and where the failure so to do contributes to an injury sustained from a train of cars, such contributory negligence will defeat a recovery of damages by the person injured. (U. P. Rly. Co. v. Adams, 33 Kan. 427; Clark v. Mo. Pac. Rly. Co., 35 id. 350; A. T. & S. F. Rld. Co. v. Priest, 50 id. 16.)
The difficulty in this case arises from the fact that the plaintiff was a boy only 10 years of age, and therefore, as claimed by his counsel, not subject to the severity of the general rule as to contributory negligence. Can it be held as a matter of law that the failure of a boy of 10 years of age to exercise the care and prudence demanded of an adult, before attempting to pass over a railroad at a public crossing, is such culpable negligence as 'will bar a recovery for an injury sustained by the negligent running of a train of cars, even though he had sufficient intelligence and experience to know that more or less danger usually accompanied such an undertaking ? Upon this question the authorities are not without conflict. Yet we think they are for the most part distinguishable or reconcilable, because of the facts peculiar to each case. The decided cases all agree in holding that the law does'not require of a child the same degree of care that is required of a person of mature years — that a child is to be held responsible only for the exercise of such capacity and discretion as it possesses. It is also generally agreed, that whether contributoiy negligence is imputable to a child is in each case a question to be determined by the jury upon the particular facts and circumstances in evidence. From such facts and circumstances the jury can judge of the degree of its intelligence, its capacity to appreciate danger, and its ability to exercise proper judgment to avoid it. In this case the jury found that the plaintiff was familiar with the crossing, being accustomed to pass over it about four times every day ; that he knew that engines and trains were at all hours of the day passing back and forth at that point; and that it was dangerous to attempt to cross the railroad in front of a moving train or engine. The jury also found that the plaintiff, at the time of his injury, considering his age and experience, was in the exercise of ordinary care. The findings which are most favorable to the plaintiff in error as to the knowledge of the boy are upon somewhat abstract or general propositions rather than upon facts immediately related to the time of the injury. The principal matter to be determined was not so much the plaintiff’s knowledge of the dangers' generally to be apprehended at a railway crossing as it was his capacity to exercise proper care and j udgment when placed without fault on his part in a situation of danger to guard against it. It is within the observation of every one that boys of this age lack the experience and discretion of older persons, and have impulses and propensities which frequently lead them into dangerous situations, when they do not think of subjecting themselves to any special risk of danger. They may have knowledge of imminent danger, and yet, through the natural thoughtlessness and recklessness of youth, not have the watchful ward against it which would be expected in one of more mature years. The plaintiff was at a place where he had a legal right to be — on a public street, on his way to school; a train, passing on the third of five parallel tracks south of him, had obstructed his passage for a time, and, as soon as it had passed, he started on a fast walk to cross over, and was struck by a train moving eastward on the second track he had to cross. On the first track, on each 'side of the street, stood freight cars, obstructing the view of the approaching train, until after the first track had been crossed. Between the different tracks was a distance of about eight feet. It is evident that a person of mature years, in the exercise of ordinary care under these circumstances, should have looked for an approaching train before going upon the second track. But the degree of care reasonably to be expected from this plaintiff, under the circumstances in which he was placed, must be otherwise determined, and was properly submitted to the jury as a mixed question of law and fact. The conclusion at which we have arrived in this matter, while not in harmony with the decisions of some courts of high character, is, we think, founded in the better reason, and is sustained by ample authority. (K. P. Rly. Co. v. Whipple, 39 Kan. 531; Kerr v. Forgue, 54 Ill. 482; Railroad Co. v. Becker, 76 id. 25; Benton v. Railway Co., 55 Iowa, 496; Railway Co. v. Bohn, 27 Mich. 503, 513; Baker v. Railway Co., 68 id. 90; Lovett v. Railroad Co., 9 Allen, 557; Plumley v. Birge, 124 Mass. 57; Kunz v. City of Troy, 104 N. Y. 344; Railroad Co. v. Stout, 17 Wall. 657.)
As the law furnishes no definite rules for the determination of liability in such cases, each case is necessarily largely dependent upon its own peculiar facts. Even when the facts are clearly established, but are of such a character that reasonable and equally impartial minds may differ in the conclusions and inferences to be made therefrom, the making of the conclusions and inferences in any case must, ordinarily, be left to the jury. (K. P. Rly. Co. v. Richardson, 25 Kan. 391; Osage City v. Brown, 27 id. 74.)
The case of A. T. & S. F. Rld. Co. v. Todd, 54 Kan. 551, to which counsel for plaintiff in error calls o inattention, presented a case clearly distinguishable from this. There the child was a wilful trespasser, going upon the railroad tracks and under cars, knowing that he thereby was engaged in a wrongful and dangerous act, and the jury specially found that he had sufficient intelligence and experience to understand and appreciate the danger he was incurring in doing that which occasioned his injury. Upon such findings, the supreme court held as a matter of law that he was guilty of contributory negligence. The facts in this case are quite different from those found in the Todd case, and require the application of different principles.
Complaint is also made because of the instructions of the court as to the allowance of damages for permanent injuries. Before such damages can be given, the evidence must show that the permanency of the injury is reasonably certain ; there must be more than a mere possibility that such will be the result. (Railway Co. v. Cosby, 108 Ind. 32 (27 Am. & Eng. Rld. Cas. 339); Fry v. Railway Co., 45 Iowa, 416; White v. City Railway Co., 61 Wis. 536.) There was, we think, sufficient evidence upon which to submit this question to the jury; but the court should have further instructed . as to the degree of proof required when such damages are claimed. The failure so to instruct would probably of itself not be reversible error, in view of the fact that no further instruction was requested on that subject.
Other instructions of the court may be open to criticism, but, as any error in them is unimportant, under the facts found by the jury, and is not liable to occur upon another trial, we shall not lengthen this opinion by any particular consideration of them.
Considering the instructions of the court as a whole, and construing them together, we are of the opinion that they were liable to mislead the jury upon the material issues, to the prejudice of the legal rights of the plaintiff in error.
The judgment will therefore be reversed, and the case remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
This was an action commenced before a justice of the peace by the board of county commis sioners of Rawlins county against Jesse W. Beals, in which judgment was rendered by the justice for the defendant, and an appeal therefrom to the district court was attempted to be taken by the plaintiff. On motion of the defendant the appeal was dismissed. This ruling of the court is the only question presented for our consideration.
No appeal bond was given, and, in lieu thereof, the plaintiff attempted a compliance with the statute which provides : -
“When any municipality desires to appeal, no bond shall be required, and it shall be sufficient to perfect any such appeal if the appellant shall, within 10 days after the rendition of the judgment, cause to be filed with the justice of the peace a statement in writing that appellant does appeal from such judgment to the district court of the county, ( and file an affidavit setting forth the appeal is not taken for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment.’ ” (Gen. Stat. 1889, ¶4973.)
A written statement that the plaintiff appealed to the district court was filed eight days and the affidavit required by the statute was filed 15 days after the rendition of the judgment. The requirements of the statute as to the conditions upon which an appeal may be taken from a justice’s court to the district court must be complied with within the time given by the statute, or the right to an appeal is lost. When other conditions are imposed in lieu of the giving of a bond, a compliance with such' statutory requirements is essential. • Both the written statement and the affidavit must be filed; neither one of itself is sufficient to secure an appeal. The statute expressly provides that these necessary steps for an appeal must be taken within 10 days after the rendi tion of the judgment. As that was not done in this case the appeal was properly dismissed. (Struber v. Rohlfs, 36 Kan. 202; McCarthy v. Holden, 54 id. 313.) The judgment of the district court will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Johnson, P. J. :
This suit was commenced before a justice of the peace of Ford county, Kansas, by George V. Bartlett against The Atchison, Topeka & Santa Fe Railroad Company, to recover the value of two certain colts alleged to have been killed by the engine and cars of said railroad company. Plaintiff sets out two causes of action in his bill of particulars. The first is brought under chapter 94, Laws of 1874, commonly known as the “stock-killing law,” and alleges that where the colts entered upon the railroad track and where they were killed the track was unfenced ; that they did not enter upon the track at or near a public crossing; that the plaintiff made demand of defendant for the value of said colts of the defendant’s ticket agent at its depot in Dodge City, Ford county, Kansas, more than 30 days before the commencement of said action ; that the same was not paid ; and that he had been compelled to employ an attorney to prosecute said action for the recovery of the value of said colts; and that a reasonable fee for his attorney is $75. As a second cause of action he alleges, that on or about the 9th day of March, 1889, the defendant’s railway-train and cars, with a locomotive engine attached thereto for the purpose of propelling the same, which said engine and cars were then in charge of and under the control of said defendant’s engineer, fireman, and servants, did, at the place above described upon said defendant’s road, in said county of Ford, carelessly, wantonly, maliciously, unlawfully and with gross negligence run said locomotive engine and cars, which it was operating as aforesaid, against and over and killed the two colts of said plaintiff, giving the value, with an allegation that the road was unfenced at the point where the animals were killed. Both counts are intended to include the killing of two colts of the plaintiff by the railroad company. The case was tried before a justice of the peace and judgment rendered for the plaintiff, and defendant apX3ealed to the district court, where the case was tried before the court and a jury. The jury returned a general verdict for the plaintiff, and made and returned special findings of fact. Defendant below filed a motion for judgment against the plaintiff for costs on the special findings of fact, notwithstanding the general verdict, which motion was overruled, and defendant below excepted. Defendant filed a motion for a new trial, which was overruled, and defendant excepted. Judgment was rendered for plaintiff on the verdict of the jury, to which judgment the defendant duly excepted, and made a case and brings the matter to this court for review.
The first error complained of by plaintiff, in error is that the court erred in permitting the plaintiff below, while a witness in his own behalf, to testify as to the value of the colts killed. Counsel contends that the plaintiff did not show that he was possessed of sufficient knowledge of values of horses and colts to make him competent to give in evidence the value of the colts ; that because he did not know the market price of colts of that age in Dodge City and had not sold or purchased colts of that age for several years, he should not have been permitted to testify as to the value of those colts. The witness gave a description of the colts, age, size, health, and color, and was then asked, "Do you know the value of those horses? ” The witness answered, "I do, I think.” "Do you know the value of the yearling colt ? ” "I think I do,” " State what it was to the jury. ’’ Before the witness answered the question counsel for the defendant below cross-examined the witness as to his means of knowledge of the value of such colts, and in the cross-examination the witness said that he had not sold any yearling colts that year ; did not know anybody that had ; did not know what the market price was at Dodge City for yearling colts ; did not know the market price of two-year-old colts at Dodge City. The witness, after giving the value of the colts, shows that he had had considerable experience with horses ; had handled horses for a number of years, and bought and sold them ; that he was 52 years old; had dealt in horses a great part of his life ; had dealt in horses occasionally ever since he was 16 years old ; had bought and sold in Ohio, Illinois, Iowa, and Kansas, and had resided in Kansas for 21 years. The evidence shows that the witness had such general knowledge of horses and of their value that he was competent to testify to the value of the colts killed. There was another witness who testified to the value of these colts, whose competency was not questioned, who gave substantially about the same value to the colts that this witness did.
It is contended by counsel for plaintiff in error that the court erred in permitting plaintiff below to introduce secondary evidence to prove a demand on the railroad company for payment of the damages occasioned by the killing of the colts. Prom a careful examination of the record, it appears that the court excluded the evidence of the demand offered by plaintiff below, and ruled the same out, and in the instructions of the court to the jury the court limited the right of the plaintiff below to recover, if at all, on the negligence of the railroad company in the .management of the train at the time of the killing of the colts. The court said to the jury :
“ I instruct you in this case that it is necessary, in order that the plaintiff should recover, that it shall appear to the jury from the evidence and by a preponderance of the testimony that the killing was the result of the negligent, careless management on the part of the employees of the company. If you should find that the animals were killed by the engine in the operation of the companjr’s road, you will then inquire whether the killing could have been avoided by reasonable care and prudence on the part of the employees of the train. One other matter concerning the law before I pass these general instructions. Plaintiff has sued for an attorney's fee. I instruct you in this case that, under the theory of the counsel and the theory pursued in the trial of this case, plaintiff cannot recover an attorney's fee. All there is for you to do is to examine this evidence and ascertain whether or not, under the instructions I have given you and the evidence you have already had before you, the plaintiff is entitled to recover the value of the animals. The attorney’s-fee provision of our statute is a statute which is not applicable where the action is brought to recover because of the negligence or carelessness of the company in the killing or injury of the stock; only that kind where the recovery may be had regardless of that. You will therefore disregard anything that may have been said and pay no attention to what has been introduced be fore you in evidence as to attorney's fee, should your verdict be in favor of the plaintiff.''
The court did not regard this action as one under the statute of 1874, which provides for recovery of damages for the killing or injury of stock without regard to the question of negligence where the railroad is unfenced, but treated it as an action at common law. We do not think the question of demand or the want of fence along the line of the railroad had anything to do with the final result of this case, and whatever error there may have been in the admission of evidence in relation to demand was immaterial and could not prejudice the defendant below, as all injurious influence that such evidence could possibly have had was taken away by the charge of the court.
The plaintiff in error contends that this action was brought under chapter 94 of the Laws of 1874, and could not be maintained in the absence of proof of demand in accordance with section 2 of said act. There is no question but that the first cause of action stated in the bill of particulars of the plaintiff below was intended to be laid under the statute, and so far as that cause of action is concerned the plaintiff below could not recover without proof of demand, and such demand could only be proven by competent evidence. There being no competent evidence introduced or given on the trial of this case to prove a demand, the. court treated the case in its charge to the jury as an action under the common law. The plaintiff below attempted in the second cause of action to set up in his bill of particulars such facts as would bring his action under the common law, and based his right of recovery on the fact that the killing of his colts was caused by the careless, wanton and malicious acts of the railroad company, through its employees, in the management of its engine and train of cars in the operation of its road. In this attempt the language employed in framing the bill of particulars is very peculiar and ambiguous, and so connected that it would seem to convey the construction that, instead of the railway company, its agents or employees being guilty of negligence, the railroad train did carelessly, wantonly, maliciously, unlawfully and with gross negligence run its locomotive engine and cars against and over and killed the colts. It is contended by counsel for plaintiff in error that, under the peculiar phraseology of the second count of the bill of particulars, it must be held that the charge of carelessness, wantonness and maliciousness was against the railroad train and cannot be held to be a charge of negligence against the defendant. . Section 140 of chapter 80 of the General Statutes of 1889 reads :
“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.”
Section 115 of the code of- civil procedure reads :
“In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.”
It is evident that the attorney who drew the bill of particulars was somewhat unfortunate in the wording of this cause of action, but the intention of the pleader is evident from other portions of the cause of action, and we must construe this cause of action as a whole for the purpose of determining the real meaning and sense of the words employed. It was certainly not the intention of the counsel in framing this cause of action to allege that the railroad train ran its engine and cars over the colts of the plaintiff. It is too apparent upon the reading of the entire cause of action that the counsel intended to allege that the colts were killed by the railroad train belonging to defendant below, and that the railroad train was in charge of and under the control of the defendant’s servants and employees, and that it was negligently operated by the employees and servants of the company. This mistake could have been cured by amendment at any time if the attention of the court or counsel had been called to it.
In the case of Crowther v. Elliott, 7 Kan. 237, Kingman, C. J., speaking for the court, says:
“Does the petition state a cause of action? We think it does, very awkwardly and inartistically, certainly, but we cannot be mistaken in the fact that the defendant was- made aware of just what the plaintiff complained of, and the relief he sought. ‘The court must tolerate modes of statement unsuited to orderly arrangement; the use of words unaptly applied; involved sentences, lacking simplicity and logical accuracy,’ if, from the whole petition, the nature of the charge can be ascertained. We find no difficulty in doing so in this case. The contract is made a part of the petition, and is not difficult of construction. The plaintiff says he has duly performed all the conditions imposed upon him by the contract, and specifies wherein the defendant has broken his. ‘In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.’ ”
There was no objection, by demurrer or otherwise, taken to the second count in the bill of particulars. The case was tried in every respect as though each count in the bill of particulars stated a good cause of action, and the objection to this count is raised for the first time in this court. We do not think that the plaintiff in error suffered any prejudice by reason of the defective statements in the second cause of action, or that it was misled in any particular. It was sufficient to apprise the defendant below of the nature of the claim against it, and it must be held good in this court.
In the case of the K. P. Rly. Co. v. Yanz, 16 Kan. 583, Valentine, J., speaking for the court, says :
“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’s fees. But even as to attorney’s 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.”
The remaining error complained of consists in the overruling of the demurrer of the defendant below to the evidence, the overruling of the motion for judgment on the special findings of fact notwithstanding the general verdict, and the overruling of the motion for a new trial. We will consider all these objections together. We do not think the court erred in overruling the demurrer to the evidence, for the reason that the evidence for the plaintiff, standing alone as it did, was sufficient for the consideration of the jury, and proved a prima facie case for the plaintiff below. Was the evidence such as to sustain the verdict of the jury? The evidence shows that the colts of the plaintiff below escaped from his inclosure a short time before' they went upon the railroad track and were killed ; that the defendant below was operating its road at that time and place -with a train of cars consisting of an engine and from 25 to 30 freight cars ; that it was going up a grade of about 25 feet to the mile; that it was running at about five to six miles per hour; that the engineer discovered the colts on the right of way before they came upon the track, and upon seeing them blew the whistle of his engine to frighten them away; that the colts ran upon the track in front of the train about 1,000 feet from where they went upon the track to the point where they were killed ; that they continued to run along on the track in front of the train until they came upon a high embankment and to an open bridge ; that they ran into the bridge and became fastened by reason of their legs passing down between the railroad ties, and the train overtook them in the bridge and they were killed. The jury found that the engineer discovered the colts on the right of way before they came upon the track; that on discovering them he sounded the whistle ; that he applied the brakes on the engine before he struck them ; that he shut off steam and reversed his engine before the colts were struck. The evidence nowhere shows, nor do the findings of the jury, that after the engineer discovered the colts fast in the bridge he could with safety to his train avoid striking them. The jury found that he reversed his engine and shut off steam before the colts were struck, but they did not find that he did so as soon as he discovered that they -were fast in the bridge. The evidence and findings of the jury show that he stopped the engine and train about 150 feet after he passed the point where the colts were struck.
An engineer on seeing stock grazing quietly along the track is not required to stop his train or slack the speed thereof in anticipation that they will come upon the track, but upon seeing stock upon the track ahead of him and running along the track, he should bring his engine under such control that if the stock should run in the cattle-guards or upon bridges he could avoid destroying them. Upon all this evidence the jury found for the plaintiff below, and we are unable to say that the verdict is not sustained by the evidence. The jury heard all the evidence, had the witnesses before them, and it was their duty and right to say what the evidence proved. There was evidence upon which the jury could properly find the verdict which they did, and, having done so, we cannot disturb it.
The judgment of the district court is affirmed.
All the Judges concurring.
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The opinion of the court, was delivered by
Garver, J. :
The defendant in error, Davies, leased to plaintiffs in error certain premises in the city of Topeka for the term of 18 months, extending from the 1st day of November, 1890, to the 1st day of May, 1892, for the rental of $1,800, payable monthly in advance, $100 to be paid on the first day of each month. The written lease contained the condition
“That, upon the non-payment of the rent, as aforesaid, the said first party may, at his election, either distrain for said rent due, or declare this lease to be at an end, and recover the same as if held by forcible detainer, the said parties of the second part hereby waiving any notice of said election or any demand for the possession of said premises.”
One A. Parker, as agent for Davies, attended to the renting of the property and the collection of the monthly rents. Rent for the month of April, 1891, was paid on the second day of that month, at which time Parker gave to the plaintiffs in error a receipt and notice, as follows :
“100.
Topeka, Kan., April 2, 1891. ,
“Received of Alice G. King $100 for rent of building on lot 252 on Kansas ave. (street), for the month ending April 30, 1891. You are hereby notified to remove from said premises in 30 days from this date if rents are not paid promptly in advance.
A. Parker, Agent.”
On the 29 th or 30th of April the plaintiffs in error vacated the premises and gave the keys to Parker, telling him that the room was vacant. Parker tendered a return of the keys, which was refused. The premises remained vacant during the following months of May and June, and on the 3d day of June, 1891, this action was commenced in the circuit court of Shawnee county for the recovery of $200, alleged to be due for rent for those months. A trial was had by the court without a jury, and judgment was rendered for the plaintiff below, Davies, for $200 and costs, against the plaintiffs in error.
On the part of the plaintiffs in error, it is contended that they simply acted upon the notice served upon them by their landlord, and surrendered possession of the premises, as they had a right to do. The defendant in error claims that the notice embraced in the receipt of April 2 was not intended as a notice to quit; that the same form of receipt and notice had been delivered to the Kings each month from the time the lease was executed, it being a printed form in general use by Parker in the collection of rents. The testimony in the case shows that the notice contained in this receipt, and in the other receipts previously given by Parker, was a printed form, and that it was delivered to the tenant, paying rent without any statement or explanation of the object or purpose of such notice. It must be assumed that a notice of this character was served for some purpose. The owner of the property had expressly stipulated in the lease, if the rent was not paid as agreed, on the first day of each month in advance, that, at his option, he might declare the lease at an end and proceed against the tenants as for an unlawful and forcible detention of the property. This he had a right to do, and it was for him to say what delays in the payment of rent he would suffer without the exercise of such option. He saw fit, through his agent, to keep before his tenants this summary power of removal and termination of the lease and his intention to exercise this power for any failure to pay rent promptly in advance. In other words, they were notified that, so far as the lease gave him an option as to the course which he might pursue for the non-payment of rent, he elected to terminate the lease by retaking possession of the property. The mere fact that for months prior to this the same notice had been given cannot affect this case. When the notice in question was served, the tenants were in default one day. How promptly previous monthly rents were paid does not appear. With some landlords a delay of payment for only one day might be sufficiently prompt; others might be more exacting about getting their dues on the very day “nominated in the bond.” These tenants defaulted in the payment of the rent for the month of May. Under the lease and this notice of April 2, the landlord might have proceeded by an action of forcible detainer at any time after the 1st day of May, if the Kings had remained in possession, and caused their summary removal. Having such right, we think the tenants would also have the right, after receiving such notice of the landlord’s election, to voluntarily vacate the premises, and he would not thereafter be heard to say that his notice was meaningless. Rent paying is ordinarily hard enough without being burdened with such uncomfortable reminders as mere byplays. Certainly one has no very sacred right to complain when he is taken at his word; especially when it is a matter which may be of material advantage to him should circumstances require its use. The fact that the premises were vacated the day before the May rent was due, instead of the day after, can make no difference. We think, however, that the default must be held to be for the month of May, and that the rent for that month, being payable in advance, was due from the tenants under the lease, even though they did not occupy the premises.
The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.
All the Judges concurring.
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Tlxe opinion of the court was delivered by
Johnson, P. J. :
In May, 1888, the York Draper Mercantile'Company commenced an action in the district court of Ford county, Kansas, • against R. N. Hutchinson, R. P. Hutchinson and The Dodge City Ice Company, for the purpose of subjecting certain shares of the capital stock of the Dodge City Ice Company held by R. P. Hutchinson (a minor son of R. N. Hutchinson) to the payment of three several judgments against R. N. Hutchinson, and to restrain R. P. Hutchinson and the Dodge City Ice Company from transferring or in any way disposing of said stock. On the filing of the petition' and affidavits and proof that the judge of the district court was absent from the county of Ford, the probate judge of said county granted a temporary restraining order as prayed for in the petition, and fixed the amount of the undertaking for the inj unction ; and thereupon the clerk of the district court issued a summons to the defendants named in the petition, and indorsed the summons “Injunction allowed.” Said summons was dated May 19, 1888, directed to the sheriff of Ford county. The sheriff made the following return, indorsed on the summons :
“Received this writ on the 19th day of May, 1888, at 4 o’clock p. M. May 19, 1888, served the same by delivering a copy thereof, with the indorsements thereon, duly certified, to the within-named defendants, the Dodge City Ice Company, by copy to its president, IT. M. Berverly, and R. N. Hutchinson and R. P. Hutchinson personally.”
On the 12th day of June, 1888, an answer was filed by the defendants. On the 30th day of November the case was tried before the court, without a jury, and resulted in a j udgment for the plaintiff sustaining the injunction; also judgment against R. N. Hutchinson for $105.68 and costs of suit; that if the same should not be paid in 30 days thereafter, six shares of the capital stock of the Dodge City Ice Company, held by R. P. Hutchinson, be sold to the highest bidder, in the same manner that sales of chattels are made under execution, by an order of the court, to be issued by the clerk to the sheriff of Ford county, Kansas, and that the proceeds of such sale be applied to the payment of said judgment. On the 4th day of February, 1889, on application of plaintiff, the judgment of November 30, 1888, was amended so as to order that all the shares of the capital stock of the Dodge City Ice Company, to wit, 10 shares, held by R. P. Hutchinson be sold. Afterward, an order of sale was issued by the clerk of said court, and the 10 shares of stock sold by the sheriff of said county, and a return of the sale thereof made to the court. On the 4th day of May, 1889, R. P. Hutchinson, by W. E. Hendricks, his next friend, filed a motion to set aside the judgment in the case, for the reasons (1) that the judgment was irregular because no guardian ad litem was appointed; (2) that the judgment was irregular and void for want of jurisdiction, this defendant not having been served with summons or other legal process ; (3) that the judgment was illegal and void, for that it was rendered on the 1st day of December, 1888, subjecting certain property of this defendant to the payment of the debt of another ; that afterward, to wit, on the 4th day of February, 1889, said judgment was increased 40 per cent, without filing a motion therefor, as required by the rules of the district court in and for Ford county, Kansas, and without any notice or knowledge to this defendant. On the 25th day of May, 1889, this motion was heard by the court, and the court thereupon made the following order :
“Being fully advised in the matter, ordered and adjudged that said judgment be opened, and R. P. Hutchinson be allowed to plead to plaintiff’s petition. . . . That R. N. Hutchinson is hereby appointed guardian ad litem for R. P. Hutchinson.”
Thereafter R. P. Hutchinson, by his guardian ad litem, filed a demurrer to the petition of the plaintiff, which was by the court sustained, and the plaintiff electing to stand upon its petition, judgment was rendered against it for costs of suit. The plaintiff now brings its case to this court, and assigns two errors, upon which it asks that the judgment of the district court be reversed : (1) That the court erred in opening up the judgment of November 30, as amended February 4; and (2) that the court erred in sustaining the demurrer of R. P. Hutchinson, and rendering judgment thereon against the plaintiff.
This brings us to the consideration of the errors in the order assigned. Was the judgment void, or voidable only? If the judgment was vacated because there was no service of summons on R. P. Hutchinson, then the judgment would be absolutely void for want of jurisdiction over his person. If it was vacated because R. P. Hutchinson was a minor and no guardian ad litem had been appointed, then the judgment would be voidable only. The record is very indefinite as to whether the court found there was any service of summons on R. P. Hutchinson, or'whether it vacated it solely for the reason that it was irregularly obtained by. reason of no guardian ad litem having been appointed. The record of the court in vacating the judgment reads as follows :
“Now, on this 25th day of May, 1889, this cause came on to be heard in its regular order on the docket, on motion of R. P. Hutchinson; and the court, after hearing the argument of counsel for plaintiff and defendant, and being fully advised in the matter, orders and adjudges that said judgment be opened.”
Taking the evidence set out in the record in connection with the order and findings of the court, we are led to conclude that the court vacated the judgment for want of jurisdiction over the person of the defendant R. P. Hutchinson, and -we do not think the court erred in setting aside and vacating the judgment herein.
The second error complained of is the sustaining of the demurrer of the defendant R. P. Hutchinson to the petition of the plaintiff. The petition of the plaintiff alleges that it is a corporation duly and legally incorporated under and by virtue of the laws of Kansas, and that the defendant the Dodge City Ice Company is a corporation duly incorporated under and by virtue of the laws of Kansas ; that the defendant R. P. Plutchinson is a minor, and R. N. Hutchinson is his father and guardian by nature. The petition then sets out the obtaining of three several judgments against the defendant R. N. Hutchinson, the issuing of executions thereon, directed to the sheriff of Ford county, Kansas, and the return of the sheriff that no property of the defendant could be found whereof to make said judgments. It further alleges that the debt for which the judgments were rendered was contracted for before the month of December, 1887, and alleges that certain shares of capital stock in the Dodge City Ice Company were procured by the said R. N. Hutchinson in said corporation for a certain interest that the said R. N. Hutchinson owned in a partnership of which he was a member, and which was taken and formed a part of the assets and stock of the Dodge City Ice Company, and that for his interest in said partnership and property the company issued shares of stock therefor; but that, for the purpose of hindering, delaying and defrauding the creditors of R. N. Hutchinson, and especially those creditors whose claims are represented by the judgments set out in the petition, said defendant had said shares of stock in said corporation, without any actual consideration having been paid therefor, issued in the name of bis minor son, R. P. Hutchinson, and he now holds and claims to own the same. The petition further alleges, that after careful inquiry it has been unable to find any property of the defendant R. N. Hutchinson subject to levy under execution, and alleges the fact to be that defendant R. N. Hutchinson is wholly insolvent, and that unless said shares of stock of the Dodge City Ice Company are subjected to the payment of said judgment they cannot be collected. The petition then alleges the necessary facts to obtain an injunction against the ice company and R. P. Hutchinson to restrain them from the transfer of such shares of stock until such time as the case could be heard by the district court. We think that this petition contains sufficient facts to constitute a good cause of action in favor of the plaintiff and as against all of the defendants, and think that the judgment of the district court in sustaining the demurrer of R. N. Hutchinson was erroneous.
- For the error hereinbefore stated the judgment is reversed, and the- case remanded to the district court, with direction to set aside the judgment and overrule the demurrer, and grant the parties a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This is an action brought under paragraph 1321, General Statutes of 1889, in the district court of Russell county, by Joseph IT. Eddy against the Union Pacific Railway Company, to recover damages alleged to have been by him sustained through the negligence of the railway company in permitting fire to escape from one of its engines, whereby-certain personal property belonging to the plaintiff was burned and destroyed.
The railway company answered by general denial, and also alleged that whatever damages were sustained by the plaintiff were caused by and through his own fault and negligence. The jury returned a general'verdict in favor of the plaintiff below, assessing his damages at $598, together with an attorney fee of $160. They also made special findings of fact in answer to special questions submitted by the parties to the action. The defendant moved to vacate and set aside the general verdict, and for judgment in its favor upon the special findings of fact, and also for a new trial, which motions were severally overruled by the court and a judgment was rendered in conformity with the general verdict of the jury. The railway company has brought the case to this court on a certified transcript of the record which does not contain any of the evidence introduced at the trial, and assigns as errors, the action of the court in overruling its motion for judgment on the special findings of the jury, overruling its motions for a new trial, and rendering judgment in favor of the plaintiff instead of the defendant.
The principal contention is, that the special findings are inconsistent with each other as well as with the general verdict.. The findings of fact which are material in order to present the alleged errors are the following ■ in answer to special questions - submitted by the plaintiff:
“ 1. < Was the plaintiff guilty of any negligence which contributed to the setting '.out of the fire or to the damages of the plaintiff ■? No,
“;2. Was the right of way of defendant at the place where the fire started clear of dry and dead grass, lia ble to be ignited by sparks or cinders from defendant’s engine? No.
“3. Did the fire which injured the plaintiff originate on defendant’s right of way? According to the testimony in this case, we believe it did.
“4. Did the defendant carelessly and negligently allow dead and dry combustible grass and weeds to accumulate on its right of way, liable to be ignited by sparks and cinders from defendant’s engines? Yes.
“ 5. Had the defendant kept its right of way clear of dead and dry combustible grass and'weeds, would the fire that destroyed plaintiff’s property have been started? No.”
“8. Was the fire which burned plaintiff’s property set by a locomotive being managed and operated by the defendant? Yes.”
And the following in answer to special questions submitted by the defendant:
“16. If Joseph H. Eddy had surrounded his stacks with fire-guards or taken any other precautions within his power to prevent the incursion of prairie fires, would such precaution have lessened the risk of incursion by prairie fire? Yes.
“17. Did. the plaintiff, Joseph H. Eddy, on or prior to the 28th day of July, 1890, take any steps or make use of any means to protect his wheat stacks or other property from incursions by prairie fires by plowing or otherwise? Yes.
“18. If you answer the proceeding question in the affirmative, state what steps he took to protect his stacks or other property from damage by prairie fire. He plowed a few furrows.
“19. Was not the country surrounding these wheat stacks of plaintiff and betwreen there and the point where the fire originated an open, level country, unobstructed by trees, hedges, or rocks? Yes.
“20. Was plaintiff negligent in not taking any precautions to protect his property from incursions from prairie fires? Yes.”
There is nothing in the record indicating the prox imity of - the property destroyed to defendant’s railroad, except the answer to the nineteenth interrogatory, and.the allegation in the petition that “by means of a continuous body of dry grass and other combustible material the fire was communicated .to plaintiff’s premises, without any fault on his part.”
The railroad company contends that the special findings of the jury clearly indicate that, although Mr. Eddy plowed a few furrows around his property, yet that was not a sufficient protection, and that he was negligent in not taking proper precautions to protect his property from prairie fires, and- that the court should have sustained the defendant’s motion for judgment on the special findings of the jury, or should have sustained1 defendant’s motion for a new trial because of the alleged inconsistency between the answers to the first and twentieth interrogatories. We cannot, however, agree with counsel in this contention. True, the jury found that the plaintiff was negligent in not taking any precautions to protect, his property from incursions by prairie fires, but they also found that this negligence of the plaintiff did not contribute either to the setting out of the fire or to the damages which the plaintiff sustained by reason of the negligence of the defendant. The defendant is only released from liability when the negligence'of the plaintiff contributes to produce the loss as a proximate cause and not as a remote cause or condition.
It has been well said, that “in order to avail the defendant anything there must be not only 'negligence on the part of the plaintiff, but contributory negligence, and real, proximate, causal connection between the plaintiff’s negligent act and the injury, or it is no defense to the action.” In other words, the remote negligence of the plaintiff will not protect the defendant who by proximate negligence has done him an injury. (Beach, Contrib. Neg. §§ 10, 11; Wharton, Neg. §§ 323-333; Savage v. Insurance Co., 36 N. Y. 665; Morris v. Litchfield, 35 N. H. 271; Railway Co. v. Fire Association, 55 Ark. 178; P. Rld. Co. v. Houts, 12 Kan. 328.) In Ft. S. W. & W. Rly. Co. v. Tubbs, 47 Kan. 630, our supreme court holds that, in an action under paragraph 1321 of the General Statutes of 1889, the plaintiff is not chargeable with contributory negligence for a mere failure to take precautions against the negligence of the defendant, and the court, speaking through Green, C., says : “A mere finding of the jury that the plaintiff did nothing to protect his land would not make him guilty of contributory negligence.” In Kellogg v. Railway Co., 26 Wis. 223, it is said:
“Negligence of the plaintiff, in such cases, which precludes a recovery, is where, in the presence of a seen danger (as where the fire has been set) he omits to do what prudence requires to be done under the circumstances for the protection of his property, or does some act inconsistent with its preservation. Where the danger is not seen but anticipated merely, or dependent on future events (such as the future continuance of defendant’s negligence), plaintiff is not bound to guard against it by refraining from his usual course (being otherwise a prudent one) in the management of his property and business. ”
See, also, Railway Co. v. Hendrickson, 80 Pa. St. 182; C. B. U. P. Rld. Co. v. Hotham, 22 Kan. 41; St. J. & D. C. Rld. Co. v. Chase, 11 id. 47. We are of the opinion that the plaintiff in error has no cause of complaint as to the rulings of the court which are assigned as error.
The judgment of the district court will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
Prosecution for the unlawful sale of intoxicating liquor. Conviction had at the January term, 1895. The defendant, Etzel, appeals. The information filed in this action contains seven counts, charging the defendant in the first, second, third, fourth and fifth counts with having sold intoxicating liquors at No. 112 Klein street in the city of Topeka during the month of March, A. D. 1895 ; and in the sixth and seventh counts with having at the same place sold intoxicating liquor during the month of February. The information is sworn to positively by one D. N. Burge. After the testimony was in, the state elected to rely for a conviction upon the first, second and third counts of the information upon alleged sales made upon the 4th day of March and testified to by Kimball and Meredith, and upon the fourth count as testified to by Kimball and Woods of sales made on the 5th day of March, and on the sixth count as testified to by Meredith of sales on the — day of March, 1895. Kimball and Meredith were the only witnesses introduced on behalf of the state who testified to any sales. The testimony of Kimball was, that on the 4th day of March he purchased a half pint of whisky from the defendant, and paid him 50 cents therefor, and that on the same day he purchased at one time six glasses of beer from the defendant, and at another time on the same day he purchased of and paid the defendant for six glasses of beer; that Meredith was present at the] time he made the purchase above mentioned; that on the next day, the 5th of March, he purchased six glasses of beer from the defendant, paid him for the same, and that one Woods was with him at the time. Meredith testified that on the 4th day of March he purchased a half pint of whisky of the defendant, paid him therefor, and that Kimball was present at this time ; that the same evening Kimball purchased of the defendant six glasses of beer at one time, and six glasses of beer at another, and paid him for each of them. Woods testified that he never had purchased any beer of the defendant, never had seen any one purchase beer there, but that he drank beer there, but never saw any one pay for it. And this was all the testimony with reference to the sales of liquor made by the defendant as charged in the information. D. N. Burdge, who verified the information, testified that he never saw the defendant sell any intoxicating liquors ; that the witnesses Kimball and Meredith had informed him that he was selling liquor — beer and whisky — and informed him of the sales which were testified to upon the stand; that at the time he swore to the information he had in contemplation what Kimball and Meredith told him, and the alleged sales made to them, as testified to by them in this case ; he had no personal knowledge of any sales, and that all he knew was what the witnesses Meredith and Kimball told him. This was all the testimony offered.
The defendant requested the court to instruct the jury as follows :
'‘That no conviction can be had on any offense except such as D. N. Burdge knew of at the time the information was filed, and if you believe from all the testimony in this case that any offense relied upon for conviction by the prosecution was not known by said D. N. Burdge at the time this information was filed, that you cannot convict on such offenses. The knowledge referred to in the foregoing instruction means personal knowledge, not hearsay, or what some one else may have told him, and although you may believe from the evidence that prior to the filing of the information the witnesses Kimball and Meredith may have told said D. N. Burdge of said alleged sales, that would not constitute legal knowledge upon the part of D. N. Burdge.”
These instructions were refused by the court; the court did charge upon this proposition as follows :
“Where an information in this kind of a case is verified by a private citizen, then and in that case I instruct you that the defendant in such a case cannot be convicted of any offense of which the person verifying the information has no notice or knowledge at the time of verifying the information ; and in this case I instruct you that defendant can only be convicted of such offense or offenses as E>. N. Burdge, who verified the information, had notice or knowledge of at the time he so verified it; and if you believe from the evidence that D. N. Burdge had no notice or knowledge of any of the offenses charged in the information at the time of verifying the same, and upon which the state relies for a conviction, then you should acquit the defendant of all the offenses relied upon by the state of which Burdge had no notice or knowledge.”
The jury found the defendant guilty as charged in the first, second and third counts of the information, and not guilty on the fourth, fifth and sixth counts.
There is but one question presented for the consideration of the court in this case, viz. : That the court erred in refusing to give the instructions asked for by the defendant; and on the part of the defendant in support thereof we are cited to several decisions of the supreme court of this state, but we do not think that they apply. This question was not raised The State v. Gleason, 32 Kan. 252; that was upon the sufficiency of a complaint verified on information and belief. In The State v. Brooks, 33 Kan. 708, Mr. Justice Valentine lays down the rule exactly as given by the court in its instructions, and Brooks was convicted upon a count in the information of which the prosecuting witness had not ' ‘ the slightest thought or information.” In The State v. Lawson, 45 Kan. 339, testimony had been taken before the county attorney, as provided by statute, and filed with the information. Lawson was convicted for sales not mentioned in such testimony. And in The State v. Hescher, 46 Kan. 534, the conviction was under the same circumstances as in the Lawson case, and we have failed to find any authority which goes to the extent claimed by the defendant, “that there must be an actual personal knowledge of the offense committed”; in other words, that the party making the complaint must have been present and taken part in the unlawful transaction. For this is what is really claimed by the defendant when he says ‘ ‘ that knowledge means personal knowledge and not hearsay.” Were- this rule adopted, it would only be those who had actually drunk the liquor who would be competent to verify an information. "While he might see some one else drink and pay for something, yet, if he did not drink himself, his information or knowledge as to what it was would be hearsay. To adopt a rule of this kind would make it impossible for crime to be punished. There is no contention in this case, as there was in the Gleason case, that no legal foundation had been laid for issuing the warrant. The complaint here was regular in form and supported by positive oath. This conferred jurisdiction. The testimony, as to certain sales made at certain times is direct and positive, and the testimony of D. N. Burdge was that he had these identical transactions in his mind — “in contemplation’’ — when he verified the information. The defendant was found guilty upon these specific sales, and was convicted of the identical offenses which were in the mind of Burdge at the time he made the complaint. The court instructed the jury fully and fairly, and gave him the benefit of all that was his due under the law, and we do not think that any of his rights were prejudiced.
"An information charging the unlawful sale of intoxicating liquor, verified by the county attorney upon information and belief, is sufficient for all purposes, except to procure the issuance of a warrant and the arrest of the defendants. A verification of such a charge by the county attorney, stating positively that the allegations of the information are true, when in fact he did not see the unlawful sales made, but had received information from other sources, does not invalidate the information, nor prejudice the substantial rights of the defendant.” (The State v. Moseli, 49 Kan. 142.)
And where a county attorney files an information charging the defendant with keeping a nuisance, and positively verifies the same ‘ ‘ as true in substance and in fact,” motions to quash the warrant and information, and a plea in abatement upon the grounds that the information is not properly verified, and that the county attorney has no personal knowledge of the facts alleged therein, are properly overruled. We do not think the court erred in refusing the instructions asked for by defendant.
The judgment of the district court must be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Carver, J. :
Various errors are assigned in this case by the plaintiffs in error, but the only one which we deem of sufficient importance to consider at any length is that based upon the action of the court in directing the jury to return a verdict against plaintiffs in error, who were plaintiffs below. The verdict ivas so directed on the ground that the plaintiffs’ cause of action was virtually one for relief on the ground of fraud, and, as more than twó years had elapsed since the fraud was committed, the bar of the statute of limitations precluded any recovery. The question this court has to consider is : Is this a case to which applies the statute limiting the time for commencing ‘ ‘ an action for relief on the ground of fraud”? The facts are these: N. B. Brown & Co., plaintiffs in error, obtained a judgment in the district court of Cloud county, on April 29, 1881, for $310.70 against S. J. Roberts. On April 27, 1886, an execution was issued and returned “No property.” By proceedings in garnishment, instituted December 3, 1888, certain money deposited in the name of S. J. Roberts in the Cloud County Bank was attached as his property. Helen Roberts, wife of S. J. Roberts, filed an interple.a, claiming to be owner of the money, upon which issue was joined and a trial had before the court and a jury. On the part of the plaintiffs, evidence was introduced tending to show that the money attached was the property of S. J. Roberts, and that any claim made thereto by his wife was a mere sham' and pretense for the purpose of defrauding creditors. On the other hand, Helen Roberts introduced evidence tending to show that on or about April 25, 1881, four days before the judgment was rendered, S. J. Roberts conveyed to his father, Joshua Roberts, his farm and' personal property, consisting of 7 horses and colts, 4 cows and calves, 45 hogs and pigs, 400 bushels of corn, and farming implements — being all the property he had — in payment of an existing indebtedness of S. J. Roberts to his father, and that a short time thereafter Joshua Roberts executed conveyances of the property to her. The evidence further tended to show that there was no actual change of possession of any of the property ; that S. J. Roberts continued in charge and management of the business as he had been before such conveyance was made ; and that the money in the bank was the proceeds of hogs sold by him from the farm a few days before the summons in garnishment was issued,-which were-claimed to be derived from the property conveyed to Helen Roberts. The court held that the plaintiffs were barred by the two-years statute of limitations from' questioning the alleged ownership in the money attached, and directed a verdict for the interpleader.
In thus taking the case from the jury and directing a verdict we think the court erred. This cannot be considered a proceeding on the part of the plaintiffs to.set aside, on the ground of fraud, the transfer of property alleged to have been made to Helen Roberts in 1881. The contention of plaintiffs is, that in fact and in law there was no transfer, and that the claim of Helen Roberts, now asserted to this money, is a mere sham and‘pretense, which cannot successfully cloak itself with a fabric woven out of former frauds. The gist of this contention is over the existence of a present fact, the ownership of the attached money, and former transfers and transactions only come incidentally into the case. This limitation applies in express terms to “an action for relief on the ground of fraud.” This cannot be held to apply to every case wherein a fraudulent transaction may be, either directly or incidentally, inquired into. It must be a case where the party against whom the statute is urged as a bar is seeking relief to which, he claims himself entitled because of the fraud of the opposite party. In other words, the fraud must be a part of the substantive cause of action on which the right to relief is founded, and without which no cause of action exists. (Jackson v. Plyler, 38 S. C. 496; Vanduyn v. Hepner, 45 Ind. 589; Detwiler v. Schultheis, 122 id. 155.)
The plaintiffs do not base their proceedings on fraud, but attach the property simply upon the fact, as contended, that it is the property of the judgment debtor. The question of fraud eomes into the case only because the interpleader lays claim to the money attached, and, as evidence of her ownership, endeavors to show that it is the outgrowth of other property transferred to her in 1881, which transfer, it is contended, cannot be attacked for fraud, because of the lapse of more than two years. Under the testimony, and for the purpose of this case in this court, we must take it as proven that the claimed transfer to Helen Roberts in 1881 was made with intent to defraud creditors, and it must therefore be deemed “utterly void and of no effect.” (Gen. Stat. 1889, ¶3162.) The transfer to Joshua Roberts, being “unaccompanied by an actual and continued change of possession,” must also be deemed to be void, unless it is shown to have been made in good faith and on sufficient consideration. (Gen. Stat. 1889, ¶8163.) The good faith and the sufficiency of the consideration were, under the testimony, disputed questions to be determined by the jury, and, until determined in favor of those claiming under such conveyances, the transactions rest under the condemnation of the law. Lapse of time is of no avail to one who invokes such fraudulent and void acts to his aid. Were the plaintiffs seeking by a direct action to be relieved from the effects of these, conveyances, by having them declared fraudulent and having them set aside by the judgment of the court, they would be confronted by this statute of limitations.
Before closing this opinion we will refer briefly to the ruling of the court in the admission of testimony over the plaintiffs’ objection. Witnesses were allowed to give their opinions as to the ownership of the property in controversy. The ownership of the money, at the time-it was attached, and of the property from which it was derived, was the specific subject of inquiry on the trial, and was a matter fairly disputed, and for determination by the jury. As such ownership was the ultimate fact to be determined by the jury, the witnesses should not have been permitted to testify directly to that fact. Such testimony was, under the circumstances, merely the giving of their opinions and conclusions. They should have stated the facts, and the jury should have drawn the conclusions.
The judgment will be reversed, and the case remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by .
Gar ver, J. :
.In an action of replevin brought in the district court of Cheyenne county by S. A. Donelson against John Burgwald, the plaintiff obtained a judgment for the possession of certain cattle alleged • to have been wrongfully detained from him by the defendant. The defendant, as plaintiff in error, brings the case to this court, and assigns as error various rulings of the trial court.
The first complaint arises upon the overruling of a demurrer to the petition. The particular defect claimed to exist in the petition is that it fails to allege that the plaintiff was the owner of the cattle on the day they were taken by the defendant, and, also, that it failed to set out the fact that in taking the cattle the defendant acted undér and by virtue of a certain order of attachment duly issued by a proper court. These objections are not well taken. The petition properly alleges ownership and right of possession in the plaintiff and wrongful detention by the defendant at the time the action was commenced. It is not necessary that a petition in replevin set out the excuse or justification which the defendant may have; it is sufficient that the detention is alleged to be wrongful. Any legal reason which the defendant may have for withholding possession from the plaintiff is a matter of defense.
The overruling of an application for a continuance of the trial is also assigned as error. It appears from the record that the defendant, Burgwald, at the time he took the property, was acting in the capacity of constable, and levied upon the cattle as the property of one C. A. Hodge, by virtue of a writ of attachment issued by a justice of the peace, before whom was pending an action brought by the Moline Plow Company against said Hodge. In the replevin action Burgwald and the Moline Plow Company were joined as defendants. Afterward the Moline Plow Company made a special appearance, and, on its application, the case was dismissed as to it, and issues were'joined for trial between Donelson and Burgwald. The action was commenced January 5, 1891, and was tried December 3, 1891. December 1, 1891, an application for a continuance of the case for trial was made on behalf of the Moline Plow Company, the affidavit therefor setting up that said company "is the owner and the real defendant in interest in above said action,” and that it has not been able to ascertain in time for trial at that term the whereabouts of certain persons, who are material witnesses in the case. The continuance was not applied for by Burgwald, nor by any one on his behalf. We think the plow company had no right to make an application of this kind, after having been dismissed from the case on its own motion. Whatever interest it had in the trial was represented by Burgwald, who had a right to control the case so far as thé defense was concerned. The plow company had a right, under the statute, upon showing its interest, to be made a party defendant, with all the rights and privileges pertaining to a defendant in an action. Having voluntarily chosen to stand outside of the controversy, it could claim no right to be heard therein ; and, upon this ground alone, the court committed no error in overruling the application. If we look at the showing made as the ground for a continuance, we do not find it to be such as would require the court, in the exercise of its discretion, to grant the application.
Various rulings of the court in the admission and the rejection of testimony were assigned for error. After a careful examination of these objections, we find no substantial error committed. Some of the testimony rejected related to conversations and transactions with third parties which were clearly inadmissible as against the plaintiff. Certain questions whic were asked on behalf of defendant, to which objections were made and sustained, were answered in other portions of the testimony of the same witness ; other questions, to which objections were overruled, elicited answers, otherwise irrelevant to the issues in the case, which were made relevant, on the redirect examination of the witness, by reason of the character of the cross-examination. Upon the whole, the rulings of the court upon the trial were fair, impartial, and without substantial error.
It is further contended by counsel for plaintiff in error, that the court erred in refusing to instruct the jury that it was necessary for the plaintiff to prove that a demand was made on the defendant for the possession of the cattle before the commencement of the action. The court instructed the jury that no demand was necessary. In so doing, it only followed the well-settled rule in such cases. The taking of the property of Donelson under a writ directing the officer to attach the property of Hodge was wrongful from the beginning, and a demand was not necessary. (Dickson v. Randal, 19 Kan. 212.)
By a motion for a new trial the v.erdict was challenged by the defendant, on the ground that it was not sustained by the evidence, and this contention is still urged in' this court. The record shows that there was testimony introduced in support of all the material allegations of the petition, and that with respect to no material fact was there an entire absence of evidence. Upon the evidence introduced the jury found for the plaintiff, and their verdict was' approved by the trial judge. In accordance with well-settled rules, such a verdict will not be disturbed by an appellate court.
The judgment will be affirmed.
All’the Judges concurring.
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The opinion of the court was delivered by
Cole, J. :
The defendants in error recovered a judgment in the district court of Pawnee county for $101 against the railroad company for damages arising out of the alleged destruction of certain prairie grass, and including an attorney’s fee of $40 for the trial of said cause. The railroad company brings the case here for review. There are but two questions which demand our attention in this case. Counsel for plaintiff in error contend that under the evidence the plaintiffs below were not entitled to recover, and that the court erred in overruling the demurrer to the evidence.
It appears from the record that the agents and servants of the plaintiff in error were burning off the right of way, and it is admitted that the damage to the property of the defendants in error was occasioned by the fire escaping from the servants of the plaintiff in error. It was contended on behalf of the defendants in error that the setting out of the fire and permitting it to escape were acts of negligence on the part of the railroad, company. The jury found, in answer to certain special questions submitted to them, that the negligence consisted in setting out the fire upon a very windy day ; and it is contended by counsel for the plaintiff in error that this finding is not supported by the evidence. We cannot agree with counsel in this position. There is abundance of evidence from several witnesses upon this proposition, and we suppose the negligence may be established by showing that a fire was set out at a time when it ought not to have been, as well as by showing that it was permitted to escape when it ought not to have been. It is immaterial what particular section of the statute the original bill of particulars was intended to be drawn under. It stated facts sufficient to constitute a cause of action, and the record discloses no attempt upon the part of the counsel for plaintiff in error to have the same made more definite and certain.
The only remaining question in this case is that the court rendered judgment for an attorney’s fee of $40, no evidence having been introduced upon that question, nor was the same submitted to the jury that rendered the verdict upon the question of damages. It is conceded by the counsel for the defendants in error that the record fails to show such a state of facts as would permit the rendition of such a judgment, and all claim for attorney’s fees is released in their brief. The judgment of the district court must therefore be modified, upon the admission of counsel and the state of the record.
This cause is remanded to the district court of Pawnee county, with instructions to modify the judgment rendered, by striking out the attorney’s fee of $40 allowed by the court. In all other respects the judgment is affirmed. The costs of this court will be equally divided between the parties.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
C. H. Janes brought this action against George E. Wilkinson, P. J. Bean and L. J. Bean to foreclose a mortgage on a tract of land in Washington county, described as the north half of the northeast quarter of section 25, township 2, range 4 east, which was executed by the defendant Wilkinson to secure the payment of purchase-money to Janes, as trustee, on a sale and conveyance of the land to Wilkinson by E. N. Morrill. The defendant Wilkinfeon answered alleging want of title in Morrill, and a failure of consideration for the note and mortgage sued on. Bean filed an answer setting up as specific defenses : First, a denial that either the plaintiff or Wilkinson had any right, title or interest to or in the land ; second, title in P. J. Bean by virtue of a tax deed; and third, adverse possession by him under a claim of title for more than 15 years prior to the commencement of the action. The plaintiff joined issue upon these an swers, which, upon trial, was determined in favor of the defendants, the court finding that no title to or interest in the land was conveyed by Morrill to .Wilkinson ; that the mortgage consequently was without consideration; and that the mere possession of the premises by Bean, without regard to any legal right or title in him, was a sufficient defense against any claim the plaintiff could make to the land. On the findings of fact, the court gave judgment for the defendants, which, is assigned as error by the plaintiff.
The special findings of fact show that the land in controversy was situated within the 10-mile limit of the grant of land made for the use of the St. Joseph & Denver City Railroad Company by an act of congress approved July 23, 1866, entitled “An act for a grant of lands to the state of Kansas to aid in the construction of the Northern Kansas railroad and telegraph,” which granted alternate sections designated by odd numbers within 10 miles on each side of the proposed road, but excepted all lands to which' the right of homestead or pre-emption settlement had attached when the route of the road was definitely located; that the right of the company under the grant attached, if at all, to the land in controversy March 28, 1870, on which day the company filed with the secretary of the interior a map designating the route of the proposed road; that on March 15, 1870, L. J. Bean, then Lydia J. Kyle, one of the defendants, filed her declaratory statement under the preemption law in the local land office for the district in which the land was situated, alleging settlement on March 11, 1870, on the northeast quarter of section 25, township 2, range 4 east, including the land in question; that she continued to reside on and improve said land from March 11, 1870, until about November 3, 1871, when she made a homestead entry on the south half of said quarter, and thereafter perfected such entry ; that some time in 1872 the defendant P. J. Bean moved upon and took possession of the north half of said quarter-section, and from that time until the time of the trial of this case continued to occupy and improve the same ; that on October 30,1878, P. J. Bean made an entry under the timber-culture act for said tract of land, which was thereafter canceled by the commissioner of the general land office, but for what reason does not appear; that the land was awarded to the railroad company under the grant, and a patent therefor duly executed April 14,1880, conveying the title of the United States to said company. By subsequent conveyances the title was vested in E. N. Morrill, who conve3red to Wilkinson. The court further found that the land was sold for taxes in 1886 for the unpaid taxes of 1885, on which sale a tax certificate was duly issued to the purchaser ; that thereafter P. J. Bean obtained an assignment to himself of the certificate, and on September 9, 1889, took a tax deed therefor from the county clerk ; and that no final redemption notice was published as required by law.
The trial court, without determining what, if any, interest P. J. Bean had in the land, other than mere possession, held that the patent issued to the railroad compairy was void and did not convey the title to the land ; that no title or interest, consequently, was ever vested in the subsequent^grantees ; that the deed from Morrill to Wilkinson having conveyed no title, the consideration for the mortgage wholly failed; and that “ said Bean, at the commencement of this action, before, and since, being in possession of said premises, and being made a party hereto, is entitled to show that whatever his claim or title is, even if that of possession only, it is superior to any title or claim of plaintiff.”
In these conclusions we think the court erred.' They are all based upon the erroneous assumption that the patent which was issued to the railroad company was absolutely void and conveyed no title. Under the facts as found, it is clear that the land was erroneously patented to the railroad company. It is equally clear that, if the timber-culture entry of Bean was canceled on the ground that it conflicted with the grant, such action on the part of the land department was also erroneous. The right of the beneficiary under this grant must be determined as of the time when the map of the definite location of the line of the road was filed with the secretary of the interior, as required by the act. In this case, that is found to have been March 28, 1870. At that time, Lydia J. Kyle’s right to pre-emption settlement had attached, and the land was thereby excepted from the grant. (Van Wyck v. Knevals, 106 U. S. 360; Railway Co. v. Dunmeyer, 113 id. 629.)
Notwithstanding the fact that the land was thus excepted from the grant, it still continued to be a part of the public domain, and under the immediate supervision and control of the land department. Until April 14, 1880, when the patent -was issued, the legal title remained in the United States, the land was not disposed of, nor segregated from other public lands for any specific purpose. When applications should be made therefor, under any of the various acts of congress providing for the disposal of the public lands, the officers of the land department were invested with full authority to inquire', and exclusive right, in the first place, to determine, which applicant was entitled to the patent. It mattered not whether the application was made under the preemption-, homestead or other general acts of congress, or under a grant such as that considered in this case. In every case, the decisions of these officers was called for. They were required to act upon the applications made, and to issue a patent to the one appearing to them to be entitled thereto. It admits of no question whatever that lands not included within this grant, because of the attaching thereto of a pre-emption claim, were subject to the disposal of the land department. Its authority in that regard is clearly and specifically prescribed by the several acts of congress relating to the public lands. If lands attempted to be conveyed had been previously disposed of, or if they had been set apart by competent authority for a specific use, and had thus passed beyond .the control of the land department, such attempted conveyance would be a nullity, and the patent would be held void in any proceeding wherein the question of its validity might arise. It would be, in legal effect, the same as an attempted conveyance of a tract of land by a party who had no title or interest therein.. By the application of this principle, the patents were held to be void, because the lands included were not subject to disposal by the land'department, in Wilcox v. Jackson, 13 Pet. 498, where the land had previously been reserved for a military post; in Bert v. Polk, 18 Wall. 112, where the land had been appropriated and reserved for an Indian; and in Doolan v. Carr, 125 U. S. 618, where the land was embraced within the limits of a disputed Mexican grant. In these and other like cases the patents were held to be void, not simply because they were issued to persons who were not entitled to them, but because the land department was without authority to issue a patent to any person whomsoever ; there was no jurisdiction of the subject-matter — the land. The distinction, however, is clear and well defined between such cases and the case under consideration. Here it is conceded that it was proper a patent should be issued to one legally entitled thereto ; and it is only objected that the railroad company was not shown to be the one so entitled. The correctness or incorrectness of a decision or judgment has nothing to do with jurisdiction, which is simply the power to act upon the particular subject-matter to be affected. This authority to act existed in this instance, and the land department consequently had jurisdiction over the matter of the issuance of the patent.
It necessarily follows, therefore, that the patent in this case was voidable, not void, and might have been canceled at the instance of the United States, at any time before the title passed to an innocent purchaser ; but it conveyed the legal title to the land, and vested in the railroad company and subsequent grantees a title which was good against all the world, except against the United States, or one showing a superior equitable title. (United States v. Schurz, 102 U. S. 378; Smelting Co. v. Kemp, 104 id. 636; Steele v. Smelting Co., 106 id. 447; United States v. W. & St. P. Rld. Co., 67 Fed. Rep. 948.) In the case last cited, the United States circuit court of appeals, eighth circuit, had under consideration the question whether a patent issued under the circumstances similar to those in this case was void or voidable, and the whole subject was ably and exhaustively discussed by Mr. Justice Sanborn, who delivered the opinion of the court. In the course of the opinion, speaking of the authority of the officers of the la.nd department to pass upon the right of the railroad company under the grant to any particular lands, he said :
"In deciding this question they necessarily considered whether or not the railroad company had so far complied with the acts granting the lands that it had earned them ; the character of the lands themselves, and the class to-which they belonged; the time of the definite location of the line of the railroad, the homestead entries and the pre-emption filings that were then upon the lands ; the cancellation of all these entries and filings that had been made; and, finally, the legal effect of all these and all other material facts upon the claim of the railroad company to receive the lands under the acts of congress. It now appears that they were mistaken as to the legal effect of these facts, -but the question they decided was one which the acts of congress authorized and required them to decide — one which they were obliged to decide before they issued the certificates ; and, although their decision and their conveyances evidenced by these certificates may be voidable, they are not absolutely void. They are impregnable to collateral attack, and they convey the legal title to the lands to the state and its grantees.”
If a patent has been erroneously issued, through fraud, mistake, or wrong views of the law, to one party when another was legally entitled to it, a court of equity may grant relief bjr adjudging the legal title conveyed by the patent to be held in trust for the one who has the better right to it. (M. K. & T. Rly. Co. v. Noyes, 25 Kan. 340; Johnson v. Towsley, 13 Wall. 72-85; Shepley v. Cowan, 91 U. S. 330; Steele v. Smelting Co., 106 id. 447.) Or the patent maybe canceled at the suit of the government. But an innocent purchaser of the title will be protected even against the government. (United States v. B. & M. R. Rld. Co., 98 U. S. 342; C. C. & I. Co. v. United States, 123 id. 307; United States v. C. & O. L. Co., 148 id. 31; United States v. W. & St. P. Rld. Co., 67 Fed. Rep. 948.) But by no proceeding, either in law or in equity, can a mere voidable title be questioned or set aside on behalf of one who does not show in himself a superior equitable or legal title. A mere trespasser or intruder upon the premises has no standing in court for any such purpose. One may invoke the relief which a court of equity can give in such cases only upon the ground that he has a legal right to the title if the voidable title were out of the way. It is not sufficient for him to rely merely upon the fact that the title was improperly awarded to the grantee named in the instrument of conveyance. (Eaton v. Giles, 5 Kan. 24; Burnham v. Starkey, 41 id. 904; Ard v. Pratt, 43 id. 419; Stark v. Starr, 6 Wall. 402-418; Wirth v. Branson, 98 U. S. 118; Steele v. Smelting Co., 106 id. 447-454; Bohall v. Dilla, 114 id. 47; Lee v. Johnson, 116 id. 48.)
To overcome the title conveyed by the patent, and through the subsequent conveyances vested in Wilkinson, it must have been shown that Wilkinson was not in the position of an innocent purchaser, and that, consequently, the title was voidable as to him ; and that Bean, being qualified to make a timber-culture entry, had so complied with the provisions of that act as to be entitled to the patent, which he was prevented from acquiring by the erroneous cancellation of his entry. His mere possession, without title, is without avail against the holder of the legal title, notwithstanding such title may be voidable at the instance of its grantor. (Foss v. Hinkell, 78 Cal. 158; Hoofnagle v. Anderson, 7 Wheat. 212; Cooper v. Roberts, 18 How. 173; French v. Fyan, 93 U. S. 169.) If Bean was in the open, notorious and exclusive pos session of the land, under an apparent claim of ownership, such possession was notice to purchasers of whatever claim he asserted, whether legal or equitable ; and if he had the equitable title by reason of his compliance with the timber-culture act, which he asserted as his right to possession, and was entitled to the patent, no one could, as against him, claim to be an innocent purchaser. (Johnson v. Clark, 18 Kan. 157-164; School District v. Taylor, 19 id. 287; Utley v. Fee, 33 id. 683-690.)
Under the findings of fact made by the court, the tax deed was invalid, for the reason that no publication was made of the statutory notice of the time when the land would be deeded if not redeemed, and it furnished no defense in this case. Neither do we think the fact that Bean took an assignment of the certificate issued on the sale of the land for taxes, and accepted a tax deed, can be held to prejudice any other right or interest he may at the time have had in the land. It does not appear that he was in any way responsible for the assessment of the land for taxation, or that he accepted the deed for any other purpose than to avoid the prejudice which might result to his interests by its passing into other hands.
The claim by adverse possession cannot be maintained. The court found that Bean was in possession of the land continuously from some time in 1872 until the time of the trial. . This action was commenced November 11, 1889. But as the title was in the government until the patent issued, April 14, 1880, his possession until then was not such as would ever ripen into a title which could be asserted against the United States, or made the b^isis of a title against subsequent grantees. Rights cannot be acquired in public lands by statutes of limitation. ( Wood v. M. K. & T. Rly. Co., 11 Kan. 324-348; Oaksmith’s Lessee v. Johnston, 92 U. S. 343.)
We hold, therefore, that under the findings of fact the defendants were not entitled to a judgment in their favor. We do not, however, feel justified in saying that judgment upon the findings should be rendered for the plaintiff for a foreclosure of his mortgage, and barring Bean from all further interest in or title to the land, as urged by counsel for the plaintiff. The record does not contain the evidence, and the findings are silent upon certain facts which are material and essential to the determination of the rights of these parties. If Bean was in fact and in law entitled to the patent to this land, and the plaintiff does not occupy the position of an innocent holder of the legal title, we think an opportunity should be given to show such facts.
The judgment will be reversed, and the case remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Prager, J.:
This is an action to construe a will. The facts in this case are not in dispute and are as follows: Milton C. Russell died at Wichita, April 28, 1972. His Last Will and Testament dated May 14, 1969, was admitted to probate. At the time the deceased executed his will he was married to Ina Clare Russell; they were divorced on February 20, 1970. The will dated May 14, 1969, was not revoked by the testator prior to his death. Ina Clare Russell survived the testator. The decedent was a single man at the time of his death and his heirs at law were the appellants, Daniel Alan Russell and Kay Marlene Russell, his natural children, and John Jacob Russell, his adopted child, who is the appellee on this appeal represented by his guardian ad litem, Carl N. Kelly. The appellants, Daniel Alan Russell and Kay Marlene Russell, filed their petition to construe the will in the probate court of Sedgwick County. The case was certified to the district court for trial.
The will contained two paragraphs which are involved in this case. They are as follows:
“Second: I hereby give, devise and bequeath all my estate, real, personal or mixed, whatsoever and wheresoever situated, which I own or to which I may be entitled, or which I may have power to dispose of at my death, to my wife, Ina Clare Russell, in fee simple absolute.
“Thibd: In the event my wife, Ina Clare Russell, should predecease me or in the event that we should both be taken in a common disaster, I hereby devise the sum of $1.00 to my son, Daniel Alan Russell, the sum of $1.00 to my daughter, Kay Marlene Russell, and all of the rest, residue and remainder of my estate, whatsoever and wheresoever situated, which I own or to which I may be entitled or which I may have power to dispose of at my death, I hereby give, devise and bequeath to my son, John Jacob Russell.”
The case was tried in the district court upon a written stipulation of fact which incorporated the statement of facts set forth above. The issue of law presented to and determined by the trial court involves the construction of these will provisions in light of K. S. A. 59-610 which provides in part as follows:
“59-610. Revocation by marriage, birth or adoption; divorce. ... If after making a will the testator is divorced, all provisions in such will in favor of the testator s spouse so divorced are thereby revoked.”
The trial court found that this provision of K. S. A. 59-610 revoked and nullified the second paragraph of the will and barred Ina Clare Russell from taking any of the deceased’s property under that paragraph. On this finding the parties are not in dispute. The trial court further held that 59-610 also had the effect of taking out or nullifying the condition contained at the beginning of paragraph three which stated as follows:
“In the event my wife, Ina Clare Russell, should predecease me or in the event that we should both be taken in a common disaster, . . .”
In addition the trial court held that the estate of the decedent passed by virtue of the remaining provisions of the third paragraph and should be distributed as follows: $1.00 to his son, Daniel Alan Russell; $1.00 to his daughter, Kay Marlene Russell; and all the rest, residue and remainder of his estate to his son, John Jacob Russell. The ruling of the trial court gave effect to the third paragraph of the will and construed the will as though Ina Clare Russell, the divorced survivor, had predeceased the testator. The trial court entered judgment awarding the appellants, Daniel Alan Russell and Kay Marlene Russell, the amount of $1.00 each, and the remainder of the estate was awarded to John Jacob Russell. Daniel Alan Russell and Kay Marlene Russell have brought a timely appeal to this court.
The appellants raise three points of error which in their essence present one issue to be determined: How should the provisions of paragraph three of the will be construed in view of the subsequent divorce and in light of the provisions of K. S. A. 59-610?
The appellants contend that K. S. A. 59-610 had the effect of revoking only those provisions of the will in favor of the surviving divorced spouse as contained in the second paragraph and that the statute should not be construed to have the effect of revoking any portion of paragraph three which contained no provisions in favor of the divorced spouse. The specific bequest to the children under the third paragraph was to take effect only on the condition that Ina Clare Russell should predecease the testator or in the event they should both be taken in a common disaster. Appellants maintain that since Ina Clare Russell survived the testator the condition precedent did not occur, and therefore the bequest to the children was nullified. There being no provisions in the will for disposing of the testator’s estate under the factual circumstances, the entire estate of the testator passed by intestate succession, Ys to each of the appellants and K to the appellee, John Jacob Russell. Stated simply, the appellants want the will to be construed strictly in accordance with the language contained in the third paragraph.
The appellee, John Jacob Russell, takes the position that in construing a will a court must determine the intention of the testator from an examination of the entire instrument. Here appellee maintains that the will is clear and unambiguous and it states exactly what the testator intended. The testator intended that all property which did not pass to his wife, would pass to his son, John Jacob Russell, except for $1 which he intended to go to Daniel Alan Russell and $1 which he intended to go to Kay Marlene Russell.
The issue presented here is one of first impression in this jurisdiction. The courts of other jurisdictions have been faced with almost identical factual situations and have reached conflicting results. The appellants rely primarily upon Matter of Lampshire, 57 Misc. 2d 332, 292 N. Y. S. 2d 578. Lampshire is a decision of the surrogate’s court of Erie county decided in 1968. The New York statute involved there was substantially the same as K. S. A. 59-610. The will provisions were almost identical to those before us here. The court strictly construed the New York statute and held that the expressed condition precedent that the testator’s wife predecease him not having occurred, the bequest over in favor of the children could not be enforced and that the estate of the testator passed as though there was an intestacy. The New York court reasoned that if the legislature had desired the divorced spouse to be considered predeceased as a result of the divorce, it would have so stated specifically in the applicable statute, as was done by the Missouri legislature when it so specifically provided. (Vernon’s Missouri Statutes Annotated § 474.420.)
The appellee, John Jacob Russell, relies upon cases from other jurisdictions which hold that under factual circumstances as we have in this case the will should be construed and given effect as though the divorced spouse had predeceased the testator. The appellee’s position is supported by the following decisions: Peiffer v. Old National Bank & Union Tr. Co., (1931) 166 Wash. 1, 6 P. 2d 386; Volkmer v. Chase, (Tex. Civ. App. 1962) 354 S. W. 2d 611; First Church of Christ v. Watson, (1970) 286 Ala. 270, 239 So. 2d 194; Steele v. Chase, (Ind. Ct. of App. 1972 ) 281 N. E. 2d 137. The rule of these cases also finds support in the Uniform Probate Code § 2-508 which provides in pertinent part as follows:
“. . . Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, . . .”
While the Kansas statute does not contain this provision of § 2-508 of the Uniform Probate Code, we are impressed by the fact that it was approved by the National Conference of Commissioners on Uniform State Laws and by the American Ear Association in 1969.
We have concluded that the rule applied by the trial court and asserted by the appellee on this appeal should be adopted and followed in this jurisdiction. We hold that under the factual circumstances and the will provisions in this case, property which is prevented from passing to a former spouse because of revocation by divorce or annulment under the provisions of K. S. A. 59-610 passes as if the former spouse failed to survive the decedent. We take this position not only because of the fact that it represents the majority view but also because we consider it the better reasoned rule and more in line with the rationale of prior decisions of this court.
In In re Estate of Porter, 164 Kan. 92, 187 P. 2d 520, we summarized the rules which should be applied by our courts in construing wills. There we stated in Syl. f 6:
“In construing a will courts must (a) arrive at the intention of the testator from an examination of the whole instrument, if consistent with rules of law, giving every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) avoid any interpretation resulting in intestacy when possible, (d) give supreme importance to the intention of the testator, and (e) when the language found in such instrument is clearly and unequivocally expressed determine the intent and purpose of the testator without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms.”
When we apply these rules for construction of wills to the factual circumstances before us along with the provisions of K. S. A. 59-610, we cannot construe paragraph three of the will in the manner contended for by the appellants. To do so in our judgment would defeat the clear intention of the testator with respect to the disposition of his property and would bring about an intestacy which should be avoided when possible. It is clear to us that the principle of law adopted and applied by the trial court was correct and its judgment should not be disturbed.
The judgment is affirmed.
Fromme, J., not participating.
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Per Curiam:
This is an appeal from an action brought by Maria C. Garcia (plaintiff-appellant) against Southwestern Bell Telephone Company (defendant-appellee) for the recovery of damages for trespass and invasion of privacy and for punitive damages.
The facts are not in dispute. Appellee’s employee (who had been on the job one week) had been directed to remove a telephone service from apartment “B” in an apartment complex located in Wichita, Kansas. Since no one was home and the door was locked, he attempted to enter through a window in what he thought to be the correct apartment. The window, however, belonged to apartment “D” which was occupied by the appellant and her small child who were asleep in a bed near the window. The employee removed the screen from the window, raised the window and pushed the Venetian blind inward in an effort to ascertain whether the apartment was vacant. In doing so he struck several items of personal property, including a clock radio which fell on the appellant and her child and was damaged to the extent of $27.50. The appellant saw the employee’s arm inside the window and was disturbed and frightened. The appellant alleged in her petition that the employee’s acts constituted a trespass and an invasion of privacy which caused the appellee mental anguish. She sought actual damages for medical and psychiatric treatment, past and future, $35 for repairs to the radio and $500,000 punitive damages.
The case was tried to the court. At the conclusion of her evidence, the appellant asked permission to' amend her petition to increase the amount of actual damages sought by $5,000 for mental anguish suffered as a result of the employee’s intrusion. The court sustained an objection to the amendment on the grounds that it was too late in the proceedings to allow such a material alteration of the petition.
The appellant was awarded a judgment for $727.50 and costs, $27.50 being for damages to the radio. The trial court found there was no basis for holding appellee liable for punitive damages.
The appellant asserts on appeal that the trial court erred in refusing to allow her to amend her petition, and in not awarding punitive damages.
With reference to the first point, amendments after the commencement of the trial are within the discretionary powers of the court; the allowance or denial of an amendment will not constitute grounds for reversal unless it affirmatively appears that the substantial rights of the adverse party were affected by the trial court’s ruling, and further that the ruling was a clear abuse of discretion. (Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 522 P. 2d 438; and Commercial Credit Corporation v. Harris, 212 Kan. 310, 510 P. 2d 1322.) The appellant has not attempted to show that her substantial rights were affected by the court’s ruling. Having reviewed the record, we are unable to conclude the trial court abused its discretion by refusing to allow the requested amendment at this stage of the proceedings. (K. S. A. 1974 Supp. 60-215.)
We cannot agree with appellant’s argument that the award of actual damages made mandatory an award of punitive damages. Assuming that the trial court awarded the appellant actual damages as opposed to nominal damages, there is no rule of law that the awarding of actual damages requires an award of punitive damages. Punitive damages are not an automatic, mandatory result of actual damages even when recklessness is shown. While punitive damages are generally held to be allowable if the prerequisites are shown (Sweaney v. United Loan & Finance Co., 205 Kan. 66, 468 P. 2d 124), the trial court in the instant case did not feel that the appellant’s evidence was sufficient to warrant awarding punitive damages against the appellee. We find no error.
The judgment of the lower court is affirmed.
Fromme, J., not participating.
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