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The opinion of the court was delivered by
NUSS, J.:
Following this court’s affirmance of Todd M. Deal’s conviction for first-degree murder, he filed a motion for correction of an illegal sentence pursuant to K.S.A. 22-3504(1). The district court denied the motion, and Deal appeals. Because a life sentence was imposed, our jurisdiction is pursuant to K.S.A. 22-3601(b)(l). State v. Thomas, 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059 (1986) (jurisdiction over appeal of a motion to correct illegal sentence lies with court that had jurisdiction to hear original appeal). We affirm.
FACTS
Todd M. Deal was convicted by a jury of first-degree murder in 1999 and was sentenced to 25 years in prison. His conviction was affirmed by this court in State v. Deal, 271 Kan. 483, 23 P.3d 840 (2001). He then filed a motion pursuant to K.S.A. 60-1507, claiming ineffective assistance of counsel. The district court denied Deal’s claim, and the Court of Appeals affirmed. Deal v. State, No. 92,163, unpublished opinion filed May 6, 2005, rev. denied 280 Kan. 981 (2005).
On June 30, 2003, Deal filed a pro se motion to correct an illegal sentence. He first argued that the complaint was jurisdictionally defective because it added elements not required by the first-degree murder statute. Specifically, he objected to the inclusion of the words “unlawfully,” “feloniously,” and “by suffocation, drowning and/or strangulation.”
Deal’s four remaining arguments were all essentially based upon his claim that the complaint was defective. He argued that the jury instruction defining first-degree murder omitted the complaint’s added elements, i.e., “unlawfully,” “feloniously,” and “by suffocation, drowning, and/or strangulation.” He next argued that his trial counsel was ineffective for failing to object to these purported complaint defects and for failing to file a related motion for arrest of judgment. Deal additionally argued that the State presented insufficient evidence to establish one of the complaint’s added elements: that the victim died by suffocation, drowning, or strangulation. Finally, he argued that the defective complaint prevented the district court from having jurisdiction to accept a finding of his guilt.
In denying the motion, the district court found that the complaint “was a plain and concise written statement of the essential facts constituting the crime charged following the language of the statute and was legally sufficient.” It also rejected Deal’s other arguments, holding that they had already been addressed in the rejected 60-1507 motion.
ANALYSIS
Deal’s motion was filed pursuant to K.S.A. 22-3504, which only applies if a sentence is illegal. See State v. Hoge, 283 Kan. 219, 225, 150 P.3d 905 (2007). There, we acknowledged that the question whether a sentence is illegal is a question of law over which this court exercises unlimited review. 283 Kan. at 225. We also acknowledged having previously defined an illegal sentence as “a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served.” 283 Kan. at 225.
Most important, we reiterated in Hoge that a motion to correct an illegal sentence is not the appropriate vehicle by which to bring a claim that the complaint was defective. Hoge, 283 Kan. at 225-26: see State v. Nash, 281 Kan. 600, Syl. ¶ 2,133 P.3d 836 (2006). The Nash defendant argued that the complaint alleging felony murder and aggravated robbeiy was fatally defective because he was charged with taking property only from the “presence” of another rather than from the “person or presence” of another. (Emphasis added.) 281 Kan. at 601. The Nash court rejected the defendant’s motion to correct an illegal sentence because it effectively was a collateral attack on his conviction, not one seeking “correction of the sentence imposed on the conviction.” 281 Kan. at 602.
The Hoge defendant made arguments similar to the ones brought by Deal in the present case. Hoge argued:
“[T]he complaint and accompanying juiy instruction were jurisdictionally and fatally defective.’ According to Hoge, his due process rights were violated because certain language in the complaint and jury instruction was not identical to the applicable statutory language. He contended that the first-degree murder charge erroneously included the terms ‘unlawfully,’ ‘by shooting,’ and ‘inflicting injuries’ and that this language was then erroneously omitted from the accompanying jury instruction.” (Emphasis added.) 283 Kan. at 220.
The Hoge court rejected Hoge’s motion based upon a defective complaint for the same reason given in Nash. Both opinions’ results and rationale control here. Simply put, Deal does not attack his sentence: he merely challenges his conviction. That challenge would more properly be brought in a motion under K.S.A. 60-1507. But see State v. Breedlove, 285 Kan. 1006, 179 P.3d 1115 (2008) (defendant challenged sentence under K.S.A. 22-3504, seeking to have his sentence vacated, but conviction overturned because district court did not have jurisdiction to try him as juvenile).
Here, as the district courts also should have done in Nash and Hoge, the district court should have denied relief on the basis that the only relief sought was not available under the statute. However, where the district court reaches the right result, albeit for the wrong reason, it will not be reversed. Nash, 281 Kan. at 602.
Affirmed.
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The opinion of the court was delivered by
Nuss, J.:
The district court refused to consider, for any probation-related purpose, Kenneth Skolaut’s conduct occurring after his probation term but during the pendency of probation violation proceedings under K.S.A. 22-3716. The State appealed the ruling on a question reserved which the Court of Appeals dismissed, apparently for lack of jurisdiction. We granted the State’s petition for review to consider two issues. Those issues, and our accompanying holdings, are as follows:
1. Did the Court of Appeals err in dismissing the State’s appeal? Yes.
2. For purposes of determining probation violations, may a district court consider a defendant’s conduct that occurred after the probation term but during the pendency of probation violation proceedings under K.S.A. 22-3716? No.
Accordingly, the State’s appeal on a question reserved is reinstated, and the appeal is sustained in part and denied in part.
FACTS
The facts, and resultant arguments, are best understood when presented in the following chronology:
January 27, 2005: Kenneth R. Skolaut was convicted of felony driving under the influence (DUI), possession of methamphetamine, possession of marijuana, and driving while suspended.
April 8, 2005: Skolaut was sentenced to an underlying term of 15 months in prison but granted 12 months’ probation.
February/March 2006: Skolaut violated conditions of his probation. Specifically, he failed to report as directed, failed to report change of address and telephone number as directed, and failed to make payments as directed.
April 8, 2006: Skolaut’s 12 months’ probation was scheduled to terminate.
April 19, 2006: At the request of Lesia Hedgepeth, Skolaut’s probation officer, the district court issued a probation violation warrant alleging Skolaut’s violations that had occurred before the end of the probation term: Februaiy/March 2006.
May 9, 2006: End of the 30-day period after probation was scheduled to terminate during which time the district court was authorized to issue a probation violation warrant under K.S.A. 22-3716(a).
June 28, 2006: During a traffic stop, Skolaut was arrested on the probation violation warrant.
June 30, 2006: At the request of Hedgepeth, the district court issued a second probation violation warrant, alleging the June 28 events were additional violations. Specifically, Skolaut allegedly failed to provide proof of insurance, failed to yield on a left turn, and drove without possession of a license.
August 23, 2006: During Skolaut’s probation violation hearing, he admitted the violations occurring during the initial probation term: February/March 2006. Accordingly, the State requested that the court revoke his probation and impose the underlying prison sentence. The hearing was continued for 1 week to allow the parties to research whether the June 28 events, although occurring after the initial probation term, could nevertheless also be considered by the district court.
August 31, 2006: The district court found that it had erred in issuing the second warrant because it was prohibited from considering the June 28 events due to their occurring after the initial term of probation. It therefore set aside the warrant:
“The reason the second warrant, in my opinion, is not valid is because it doesn’t address an allegation that occurred during the initial term of probation. If the warrant had addressed an additional allegation that had occurred during the initial term of probation, that second warrant generally can be considered. . . . [B]ecause the second warrant addresses allegations that occurred post April 8th, 2006, it’s not valid.”
The court refused to consider the June 28 events either for determining probation condition violations or for dispositional purposes. After acknowledging Skolaut’s admission of the violations for his February/March conduct, it decided to “reinstate your probation for a period of six months from today under the same terms and conditions.”
The State filed a timely notice of appeal on a question reserved under K.S.A. 22-3602(b)(3). After the State’s response to the Court of Appeals’ order to show cause, the court dismissed the appeal.
ANALYSIS
Issue 1: The Court of Appeals erred in dismissing the appeal.
The State argues that when the Court of Appeals determined whether it had jurisdiction to hear the State’s appeal, that court apparently misread our holding, and misapplied our test, in State v. Tremble, 279 Kan. 391, 109 P.3d 1188 (2005). Skolaut basically responds that the court apparently instead believed that the State’s issue was adequately addressed by existing case law. As a result, there was no reason to decide the question reserved.
The precise reason for the Court of Appeals’ dismissal of the appeal is unclear. The State’s response to the order to show cause simply shows a hand-written “Appeal Dismissed” together with a date and signature of the Chief Judge. However, the earlier show cause order issued by that court provides some clues to the ultimate dismissal. That order states in relevant part:
“Based on the record on file in the office of the Clerk of the Appellate Court and the briefs of the parties, it does not appear this court has jurisdiction under K.S.A. 2006 Supp. 22-3602(b)(3). Jurisdiction over appeals by die prosecution on a question reserved are not entertained simply to demonstrate trial court errors which are adverse to the State or because a decision would be helpful precedent. See State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 (2005). Instead, questions reserved by the prosecution must present issues of statewide interest important to the correct and uniform administration of criminal law. State v. Mountjoy, 257 Kan. 163, 167-68, 891 P.2d 376 (1995). The State’s brief fails to allege or establish how the issue presented in this appeal poses a question of statewide importance.” (Emphasis added.)
The State responded to this show cause order, stating in relevant part:
“4. As for this court’s assertion that ‘[¡jurisdiction over appeals by the prosecution on a question reserved are not entertained . . . because a decision would be helpful precedent,’ the State would respectfully submit that this court’s interpretation of State v. Tremble, 279 Kan. 391, 109 P.3d 1188 (2005), is in error. The resolution of whether the question presented by the State’s appeal would provide helpful precedent is an integral part of determining whether a court should entertain a question reserved.
“5. The State also respectfully disagrees with this court’s findings that ‘[tjhe State’s brief fails to allege or establish how the issue presented poses a question of statewide importance.’ First, the State’s brief specifically concluded ‘The State respectfully requests this court resolve the question posed herein favorably to the State’s position in that the same would aid in the correct and uniform administration of criminal law in future cases.’ Second, the fact a matter of ‘statewide importance’ is at play is also the undercurrent of the entire brief on appeal, in that no appellate decision addresses the questions posed, nor can district courts turn to the plain language of the controlling statutory provision for guidance.
“6. If jurisdiction is denied in this case, then the questions posed herein will go unanswered and future courts facing similar issues will be left to guess at what to do; which in no way would lead ‘to the correct and uniform administration of criminal law.’ ” (Emphasis added.)
Upon receipt of the State’s response, the court dismissed the appeal.
We begin our analysis by examining K.S.A. 22-3602(b)(3), which governs questions reserved. It states: “Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others: ... (3) upon a question reserved by the prosecution.”
Our decision in Tremble, 279 Kan. at 393, elaborates upon when an appeal on a question reserved by the prosecution may be taken:
“K.S.A. 2003 Supp. 22-3602(b)(3) provides that the prosecution can appeal upon a question reserved. Such an appeal is permitted to allow the prosecution to obtain review of a trial court’s adverse ruling on a legal issue of statewide interest that is important to the correct and uniform administration of criminal justice. . . .
“In State v. Woodling, 264 Kan. 684, 687, 957 P.2d 398 (1998), we held:
‘ “Questions reserved by the State in a criminal prosecution, under K.S.A. 22-3602(b) [Furse], will not be entertained on appeal merely to demonstrate whether error has been committed by the trial court. . . . Generally, this court has accepted appeals on questions reserved by the State where the appeals involve questions of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes.” [Citations omitted.]
‘ “We have uniformly declined to entertain questions reserved in which the resolution of the question would not provide helpful precedent.” [Citations omitted.]’ ” (Emphasis added.)
See, e.g., State v. Mountjoy, 257 Kan. 163, 168, 891 P.2d 376 (1995) (“We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent.”); State v. Leonard, 248 Kan. 427, 433, 807 P.2d 81 (1991) (“Resolution of this issue [on a question reserved] will not provide a helpful precedent; therefore, we do not entertain it.”).
After the Tremble court identified its considerations for accepting appeals on questions reserved, it then addressed resolution of its specific issue:
“We turn ... to the issue of whether the issues reserved herein are matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes. Would resolution of the questions provide helpful precedent? We conclude the issues herein fail every facet of these tests.” (Emphasis added.) 279 Kan. at 394.
Tremble’s consolidated approach to the question was slightly abbreviated in State v. Price: “We find nothing in this case which would provide helpful precedent to the bench, bar, or law enforcement personnel throughout this state. The State’s appeal [on a question reserved] is therefore denied.” 247 Kan. 100, 104, 795 P.2d 57 (1990).
Based upon this language in Tremble and Price, we conclude that the Court of Appeals’ articulation of its standards for whether to accept an appeal of a question reserved is too hmiting. We reiterate that appellate courts will accept appeal of questions reserved when the issues are “matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes,” but will not consider cases in which the “resolution of the question would not provide helpful precedent.” Tremble, 279 Kan. at 394.
Jurisdiction typically is a question of law subject to unlimited review. State v. Johnson, 283 Kan. 649, Syl. ¶ 2, 156 P.3d 596 (2007). Even if one argues that whether to accept appeal on a question reserved is a discretionary decision, our review would still be unlimited because the Court of Appeals proceeded under incomplete, and therefore erroneous, legal conclusions. This court has said that “even abuse of discretion standards can sometimes more accurately be characterized as questions of law requiring de novo review.” State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). As we explained in White:
" ‘Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it makes an error of law. . . . The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” (Emphasis added.) 279 Kan. at 332 (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]).
We further conclude that if the Court of Appeals had proceeded under the correct legal conclusions, it then should have exercised its jurisdiction and granted the State’s appeal on this particular question reserved. The answer to that question — whether conduct occurring after the initial term of probation, and after a timely filed warrant has been issued, can be considered by the district court for any purpose — would, in the shorthand of Price, “provide helpful precedent to the bench, bar, or law enforcement personnel throughout this state.” 247 Kan. at 104. As support, we observe that during the hearing, the district court opined that this particular scenario is likely presented to district courts fairly often. Similarly, in State v. Schulze, this court exercised jurisdiction on a question reserved of “whether a trial judge can modify probation by deleting or changing restitution and the procedure to follow.” 267 Kan. 749, 751, 985 P.2d 1169 (1999).
Accordingly, we reinstate the State’s appeal and proceed to a resolution on the merits of the question reserved.
Issue 2: For purposes of determining probation violations, the district court may not consider conduct that occurred after the probation term but during the pendency of probation violation proceedings under KS.A. 22-3716.
There is no dispute that the first warrant was properly and timely filed for alleged violations occurring during the initial probationary term, even though the warrant was filed after the term was to end. See K.S.A. 22-3716(d) (“The court shall have 30 days following the date probation . . . was to end to issue a warrant for the arrest or notice to appear for the defendant to answer a charge of a violation of the conditions of probation.”). The State interprets 22-3716, however, to conclude that the timely filed warrant grants the district court continuing jurisdiction over probationers for all purposes during the pendency of the probation violation proceedings. According to the State, the court therefore may certainly consider any violations that occur after the initial term of probation. The State’s position represents one end of the continuum: the offending conduct may be considered for what the State characterizes as “revocational” purposes. If not, it argues that at a minimum the conduct may be considered for what it characterizes as “dispositional” purposes.
Skolaut responds that continuing the district court’s jurisdiction by the filing of the warrant and requiring probationers to follow the probationary conditions through the violation hearing is not supported by the plain language of 22-3716. He argues the midpoint of the continuum: while the later offending conduct could not be used for what he agrees are “revocational” purposes, within the district court’s discretion it could be used for what he agrees are “dispositional” purposes.
The district court’s ruling represents the opposite end of the continuum from the State. It held as a matter of law that the later offending conduct could not be used for any purposes.
The resolution of this issue requires an interpretation of K.S.A. 22-3716. Interpretation of a statute is a question of law subject to unlimited review. Abasolo v. State, 284 Kan. 299, 303, 160 P.3d 471 (2007).
Before beginning that particular analysis, however, we must clarify some terms used by the parties on appeal, e.g., “revocation,” “disposition,” and their variants. We will examine language from decisions of the United States Supreme Court and this court, as well as the language of the applicable statute.
In Black v. Romano, the Court recognized two distinct stages in the area of probation revocation:
“In identifying the procedural requirements of due process, we have observed that the decision to revoke probation typically involves two distinct components: (1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation. See Gagnon [v. Scarpelli, 411 U.S. 778, 784, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973).]” (Emphasis added.) 471 U.S. 606, 611, 85 L. Ed. 2d 636, 105 S. Ct. 2254 (1985).
See State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996) (A probationer may not have his or her probation revoked unless it is made to appear that the probationer has failed to comply with the conditions of probation. Revocation is in the sound discretion of the district court.).
K.S.A. 22-3716(b) reflects this multi-stage approach. It first provides that after the defendant’s arrest and detention pursuant to a probation violation warrant, the court services officer or commu nity correctional services officer shall immediately notify the court and submit a written report showing in what manner the defendant has violated his or her probation conditions. As the next step, “the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged.” As a subsequent step,
“[e]xcept as otherwise provided, [1] if the violation is established, [2] the court may continue or revoke the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” (Emphasis added.) K.S.A. 22-3716(b).
While the violation stage, i.e., guilt determination, is separate from the revocation stage, i.e., penalty determination, the statute makes clear that revocation is merely one type of disposition available. For example, the statutory language distinguishes “continuing” probation from “revoking” probation and distinguishes continuing sentence suspension from revoking sentence suspension. And, as we stated in Walker, 260 Kan. at 809:
“Where, as here, there is discretion to continue or revoke probation, the probationer is entitled to an opportunity to show not only that [1] he did not violate the conditions, but also that [2] there was a justifiable excuse for any violation or that [3] revocation is not the appropriate disposition.’ ” (Emphasis added.) (Citing Black v. Romano, 471 U.S. at 612, which in turn cited Gagnon v. Scarpelli, 411 U.S. 778, 789, 36 L. Ed. 2d 656, 93 S. Ct. 1756 [1973].)
The correct distinctions between “violation” and “disposition” are also reflected in the 2007 Kansas Sentencing Guidelines Journal Entry of Probation Revocation Hearing. “Section III: Disposition, 1. Disposition:” includes, inter alia, “probation not revoked; probation revoked and reinstated; probation extended for - months; probation revoked, defendant ordered to serve . . . original sentence; assigned to Conservation Camp.” The Sedgwick County District Court form used by the court in the instant case also reflects this format: the “Journal Entry of Probation Violation Hearing” provides a “Section III. Disposition.” The district court completed this section by providing: “Probation revoked and reinstated under the same and the following modified conditions. Probation extended for 6 months from 8/31/06.” Indeed, the district court held that once Skolaut admitted violating the probation conditions, “[t]hat puts us at a disposition stage as far as this probation violation.” Arguments at the district court confirm these same distinctions: after Skolaut5s admitted violations, the State and probation officer then argued for “revocation and imposition of sentence,” while Skolaut argued for revocation tempered by reinstatement of probation.
Accordingly, despite the characterizations of the parties on appeal, the most accurate description calls for recognition of the proceedings as containing two stages: (1) violation stage which, if a violation is established, proceeds to the (2) disposition stage, of which revocation may be a part.
With this clarification in mind, we begin our analysis with a review of the statutes and the parties’ arguments. K.S.A. 22-3716(a) states in relevant part:
“At any time during probation, assignment to a community correctional services program, suspension of sentence or pursuant to subsection (d) for defendants who committed a crime prior to July 1,1993, and at any time during which a defendant is serving a nonprison sanction for a crime committed on or after July 1,1993, or pursuant to subsection (d), the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment.” (Emphasis added.)
As mentioned, subparagraph (d) provides that a probation violation warrant may be validly issued within 30 days after the date probation was to end:
“The court shall have 30 daijs following the date probation, assignment to a community correctional service program, suspension of sentence or a nonprison sanction was to end to issue a warrant for the arrest or notice to appear for the defendant to answer a charge of a violation of the conditions of probation, assignment to a community correctional service program, suspension of sentence or a nonprison sanction.” (Emphasis added.)
Skolaut first relies upon the italicized language in subsections (a) and (d) to support his argument that only violations of probation conditions that occurred during the initial term can be considered by the district court. He reminds us that
“[t]he general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinaiy meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” . . . [Citation omitted.]’ ” Abasolo, 284 Kan. at 303.
Toward this end, Skolaut notes the complete absence of any statutory language suggesting that the issuance of the violation warrant extends probationary conditions through the probation violation proceedings. Cf. State v. Gary, 282 Kan. 232, 238, 144 P.3d 634 (2006) (no indication from language in K.S.A. 21-4610 that the authorized probationary conditions “may also be contingent upon behavior prior to sentencing”).
Skolaut also relies upon State v. Gordon, 275 Kan. 393, 66 P.3d 903 (2003). There, this court explained that the 30-day window in subsection (d) was added by the legislature in 1990 in response to an unpublished Court of Appeals decision holding that the plain language of K.S.A. 22-3716 prevented the district court from exercising jurisdiction over a probationer once the term of probation had ended. In Gordon we stated:
“The plain language of K.S.A. 2002 Supp. 22-3716(d) grants the court 30 days following the date probation ended to issue a warrant for the arrest or notice to appear for the defendant to answer a charge of a violation of the conditions of probation.” (Emphasis added.) 275 Kan. at 399.
Among other things, we also examined testimony before the House Judiciary Committee concerning the addition of the 30-day window and held:
“The [Court of Appeals’] Arnold decision and the testimony of Judge Buchele [before the judiciary committee] concerning the 30-day period strongly suggest that the legislature was concerned that defendants serving their last days of probation would have less of an incentive to strictly follow their probation rules knowing that any violations would require the preparation and filing of documents with the court before the termination of the probation period. When this concern is considered with the plain language of K.S.A. 2002 Supp. 22-3716(d), it becomes clear that the legislature intended by its language to grant die court an additional 30 days after probation ended to initiate probation revocations [sic] proceedings based upon violations of conditions occurring within the probationary period.” (Emphasis added.) 275 Kan. at 399.
The State responds to Skolaut’s arguments by citing State v. Rocha, 30 Kan. App. 2d 817, 48 P.3d 683 (2002), and State v. Williams, 20 Kan. App. 2d 142, 884 P.2d 743 (1994), as support. It claims these two cases indicate that probation revocation may occur after the initial term of probation upon a timely filed amended or second motion to revoke probation where an original motion continued the district court’s jurisdiction over the defendant. Rocha and Williams do not support this argument, however, because in both cases the alleged incidents occurred during the initial probationary term. Additionally, the amended or second motions were not timely filed, so the subsequent offenses could not be considered by the district court. Rocha and Williams merely stand for the proposition that revocation may occur after probation ends as long as a warrant, petition, or show cause order has been filed prior to or within 30 days after the expiration of the probationary term. Rocha, 30 Kan. App. 2d at 820; Williams, 20 Kan. App. 2d at 147. Neither case suggests that conduct occurring after the probationary term may be considered by the district court.
Although the State cites Rocha and Williams, it does not so much argue by reason of its authorities as it argues “by the authority of its reason.” In short, it contends that the district court must retain jurisdiction over the probationer for all purposes once a violation warrant becomes pending because any other reading of K.S.A. 22-3716 would be absurd. According to the State, while Skolaut concedes that the warrant provides the district court with jurisdiction over his probation until revocation, it is illogical for him to argue that the court does not also simultaneously have jurisdiction over his conduct.
Our decision in Gary is of guidance on whether conduct occurring outside the probationary term can be considered in making probation violation determinations. 282 Kan. 232. There, this court looked at whether probation could be revoked based upon conduct that occurred 3 days before Gary was put on probation. The facts reveal that Gary entered into a plea agreement for a forgery that he committed in July 2003. On May 25, 2004, he was sentenced to prison but placed on probation for 18 months. Two weeks later, he was charged with attempted robbery, which had allegedly oc curred on May 22, 2004 — 3 days before he was granted probation. The district court essentially found the attempted robbery was a probation violation, revoked probation, and imposed the underlying sentence of 11 months’ imprisonment.
On appeal, Gary argued that the attempted robbery occurred outside the probationary period and the district court was therefore barred from considering it. The State responded that the court did not abuse its discretion in revoking probation. This court rejected the State’s suggested standard of review, instead holding that the determination was a question of law. We pointed in part to this court’s earlier language in Swope v. Musser, 223 Kan. 133, 137, 573 P.2d 587 (1977): “ ‘A probationer may not have his probation revoked unless it is made to appear that he has failed to comply with the terms and conditions of his probation. ’ ” Gary, 282 Kan. at 238. We also reiterated the Court of Appeals holding that “ ‘there were simply no [probation] terms in place when Gaiy allegedly committed the attempted robbery.’ ” 282 Kan. at 238.
In response to the State’s argument in Gary, similar to the one it makes in the instant case, that “it ‘seem[ed] to defy common sense’ to prevent the revocation,” this court emphasized that
“because this issue is jurisdictional in that it goes to the power of the district court to revoke probation, the argument that a particular result seems to defy common sense is not persuasive. As the Court of Appeals explained below, ‘the undesirability of a result does not allow us to craft language onto a statute that is not already there.’ [State v. Gary,] 34 Kan. App. 2d [599,] 602[, 121 P.3d 1000 (2005)]. Thus, any discontent relating to the district court’s jurisdiction in this matter should be brought before the legislature, not the courts.” 282 Kan. at 241.
The question presently before us is analogous to the one in Gary. There, the defendant’s conduct occurred before the probationary term began; here, it occurred after the term ended. While the present warrant was issued after the term was to end on April 8, it only covered violations that occurred during tire term. After April 8, there simply were no conditions of probation for Skolaut to violate because he was not on probation at that time.
Our conclusion is not only supported by Kansas case law but also by other authorities. In 2 Cohen, The Law of Probation and Parole, § 18:19 (2d ed. 1999), tire author states: “[C]onduct occurring after the end of the probation or parole term cannot serve as the basis of a revocation. The rationale is that the offender did not breach a condition because no such condition was in effect at the time of the wrongful acts.”
The treatise cites, inter alia, United States v. Levitt, 799 F.2d 505 (9th Cir. 1986) (acts which allegedly violated the terms of probation occurred after the probation period and district court lacked jurisdiction to revoke probation and to impose sentence); Jess v. State, 384 So. 2d 328 (Fla. Dist. App. 1980) (State conceded that the burglary was not a proper basis for revocation because it was committed after defendant’s term of probation had already expired 5 months earlier); Nicklas v. State, 530 S.W.2d 537 (Tex. Crim. 1975) (lack of authority of trial court to revoke when the offense serving as the basis for revocation occurred after expiration of the probationary period).
In a case not cited in the treatise, Patuxent v. Hancock, 329 Md. 556, 576-77, 620 A.2d 917 (1993), Maryland’s highest court summarized its state’s case law to conclude that revocation of probation must be based upon conduct actually occurring during the probationary period: subsequent to the grant of probation but prior to its expiration. The Hancock court, like this court in Gary, observed that revocation cannot be based upon pre-probation conduct. It therefore appeared to use that prohibition as an analogue and as one of its reasons for prohibiting posi-probationary conduct as a consideration for revocation.
Several courts have rejected the specific argument that certain State action, e.g., filing warrants for violations of probation conditions, tolls the probation period or otherwise extends the court’s jurisdiction over all of the defendant’s conduct through the violation hearing. For example, in United States v. Paden, the court held that it lacked jurisdiction to revoke probation where conduct forming the basis for revocation occurred 2 months after the maximum period of probation had expired. It ruled that the issuance of a bench warrant for an earlier violation of probation did not toll the period to allow inclusion of the new conduct. 558 F. Supp. 636 (D.D.C. 1983). Similarly, in Hunter v. State, the court stated:
“A motion to revoke and capias do not toll the running of the probationary period. [Citations omitted.] The probation continues to run and may, in fact, expire. The timely filing of a motion to revoke and issuance of a capias will preserve only those alleged violations contained therein, and will permit revocation on that basis even after the probationary period has expired.” 640 S.W.2d 656,659 (Tex. App. 1982).
A plain reading of our statute, combined with the weight of authority from Kansas and other jurisdictions, leads to the conclusion that Skolaut’s post-probationary-period conduct cannot be considered by the court during the violation stage of the proceedings. If a violation of his conditions of probation is established, however, we see no reason why his offending conduct cannot then be considered by the court during the disposition stage as part of the district court’s discretion. See, e.g., Walker, 260 Kan. at 808.
The State’s appeal on a question reserved is sustained in part and denied in part.
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The opinion of the court was delivered by
Davis, J.:
The Secretary of the Kansas Department of Health and Environment (KDHE), Roderick L. Bremby, issued a permit to Waste Connections of Kansas, Inc. (Waste Connections), for the construction of a landfill in Harper County, Kansas. The Board of Commissioners of Sumner County, Kansas (the Board), TriCounty Concerned Citizens, Inc. (Tri-County), and Dalton Holland filed a petition for review in district court under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., challenging the issuance of the permit. The district court dismissed their petition for lack of standing. The Kansas Court of Appeals reversed, concluding that appellants each had standing as a party to the agency proceedings under the KJRA. Board of Sumner County Comm’rs v. Bremby, 38 Kan. App. 2d 557, 168 P.3d 1034 (2007). We granted Waste Connections’ petition for review, affirm the decision of the Court of Appeals reversing the district court, and remand the case for further proceedings.
Facts
In August 2002, Waste Connections applied to the KDHE for a permit to construct and operate a municipal solid waste landfill in Harper County. Included in the application was a site plan prepared by Golder Associates, which included an analysis of the suitability of the location — commonly known as Plumb Thicket — for the proposed landfill.
In September 2002, the Board commissioned a study by Terrane Resources Co. (Terrane) to evaluate the Golder site plan and analysis of the Plumb Thicket location. Terrane concluded that Waste Connections’ plan had numerous regulatory and environmental deficiencies. The Terrane report was submitted to the KDHE in May 2003.
Between August 2002 and September 2005, the KDHE held public hearings in Harper County regarding the proposed permit for the Plumb Thicket Landfill site. Among others, members of Tri-County were present at the hearing and voiced concerns as to the proposed location of the landfill. Tri-County is an organization formed to preserve and enhance the quality of fife in Harper, King-man, and Sumner Counties and to promote environmental protection.
Dalton Holland, a member of Tri-County, was present at the public hearing and expressed his concerns about the proposed landfill site. Holland owned a life estate in 400 acres in Kingman County on property lying directly north of the proposed landfill site. This property included a pond that drains a portion of the area where the landfill would be located.
In the summer of 2005, Bums & McDonnell conducted a peer review study of the Golder site plan — the plan on which Waste Connections based its request for a landfill permit. The Bums & McDonnell study pointed out additional deficiencies in Waste Connections’ site plan, including problems with the plan’s hydro-geologic reports as well as the potential for groundwater contamination. This plan was provided to the Board, KDHE, and Waste Connections.
The KDHE issued a permit to Waste Connections in August 2005 to constmct the Plumb Thicket Landfill. At that time, the KDHE also responded to comments that had previously been submitted regarding the permit. The summary section of the KDHE’s responses indicated that of the 317 “units of communication” it had received regarding the proposed landfill, 290 expressed opposition to the landfill, 20 expressed support of the landfill, and 7 did not indicate a particular stance. The responses addressed groups of related concerns, and the names of the people who submitted the original comments were omitted. The responses also did not make specific reference to the Terrane study or the Bums & McDonnell peer review.
Shortly thereafter, the Board, Tri-County, and Holland (appellants) filed a petition in Shawnee County District Court under the KJRA for judicial review, seeking an order to set the permit aside or to remand with directions that the KDHE take into account the studies by Terrane and Bums & McDonnell. The appellants claimed standing under K.S.A. 77-611(b) and (d) as parties to the agency proceedings that led to the agency action and as persons eligible for standing under other provisions of Kansas law.
The petition asserted that the KDHE failed to collect adequate information regarding the potential contamination from the Plumb Thicket site to support its decision. In particular, the appellants noted that the Terrane and Bums & McDonnell studies, which indicated that there were several regulatoiy and environmental problems with the proposed landfill, were apparently not factored into the KDHE’s decision to grant the permit. According to the allegations in the petition, the KDHE’s failure to take into consideration several deficiencies in Waste Connections’ proposed site plan could affect, among other things, the quality of the groundwater in the area and the quality of water in the Chikaskia River— a source of water for some residents of Sumner County.
The petition further stated that the proposed landfill could cause damage to real property bordering the site, including property owned by Holland.
Waste Connections was allowed to intervene and filed a motion to dismiss or, in the alternative, a motion for a more definite claim, asserting that the appellants lacked standing to bring the action under the KJRA because they had not suffered a cognizable injury and that appellants failed to state a cause of action.
The district court granted the motion to dismiss based upon its conclusion that appellants lacked standing under K.S.A. 77-611. According to the court, the KDHE’s permit was directed at Waste Connections, not the appellants. See K.S.A. 77-611(a). Moreover the court concluded that KDHE did not hold any proceedings pursuant to the Kansas Administrative Procedure Act, K.S.A. 77-501 et seq., so the appellants could not have been parties to those proceedings within the meaning of K.S.A. 77-611(b). The appellants appealed.
The Court of Appeals reversed the district court, concluding that the appellants had standing as parties to the agency proceedings under K.S.A. 77-611(b) pursuant to our opinion in Families Against Corporate Takeover v. Mitchell (FACT), 268 Kan. 803, 1 P.3d 884 (2000). Board of Sumner County Comm’rs, 38 Kan. App. 2d at 561-63. The court also concluded that Tri-County met the requirements for organizational standing under this court’s decision in NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000). Board of Sumner County Comm’rs, 38 Kan. App. 2d at 563-64. The Court of Appeals made no findings, however, as to the traditional standing of either the Board or Holland.
We granted Waste Connections’ petition for review.
Discussion
Standing is “one of the most amorphous concepts in the entire domain of public law. [Citation omitted.]” Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155, appeal dismissed 484 U.S. 804 (1987); see also 312 Education Ass’n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002) (quoting Harrison). We have explained that if a person does not have standing to challenge an action or to request a particular type of relief, then “there is no justiciable case or controversy” and the suit must be dismissed. Kansas Bar Ass’n v. Judges of the Third Judicial Dist., 270 Kan. 489, 490, 14 P.3d 1154 (2000). When a person who does not have standing to file suit nevertheless asks for relief, it is tantamount to a request for an advisory opinion. See 270 Kan. at 491. Advisory opinions are an executive, not a judicial, power. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 885, 179 P.3d 366 (2008).
The district court ruled that the appellants in this case lacked standing because they were not parties under the KJRA. This Act has its own standing provisions that govern who may seek review of agency determinations. See K.S.A. 77-611. Thus, before determining whether the appellants have standing under traditional standards governing standing in this state, we must consider whether the appellants meet the standing requirements of the KJRA. See FACT, 268 Kan. at 807. If we determine that the appellants do have standing to challenge the agency action in this case under the KJRA, we must also consider whether they meet the traditional tests for individual and associational standing under Kansas law. Before considering these questions, however, we briefly examine the standards that govern our review.
Standard of Review
The ultimate question before this court on petition for review is whether the appellants had standing to challenge the KDPIE’s issuance of a permit for the construction and operation of a landfill in Harper County. Standing is a jurisdictional question whereby courts determine “whether the plaintiff has alleged such a personal stake in the outcome of a controversy as to warrant invocation of jurisdiction and to justify exercise of the court’s remedial powers on his or her behalf.” Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996). A party must have a sufficient stake in the outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy. Harrison, 241 Kan. at 176. Because standing implicates the court’s jurisdiction to hear a case, the existence of standing is a question of law over which this court’s scope of review is unlimited. 312 Education Ass’n, 273 Kan. at 882.
Additionally, we must bear in mind that this case comes before us after the district court granted Waste Connections’ motion to dismiss. The district court’s ruling was made before commencement of discoveiy. Under these circumstances, we accept the facts alleged in the petition as true, along with any inferences that can be reasonably drawn therefrom. If those facts and inferences demonstrate that the appellants have standing to sue, the decision of the district court must be reversed. See McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, 634, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).
(1) Standing Under the KJRA
The KJRA recognizes four categories of persons who have standing to seek judicial review of an agency action, as set forth in K.S.A. 77-611:
“(a) A person to whom the agency action is specifically directed;
“(b) a person who was a party to the agency proceedings that led to the agency action;
“(c) if the challenged agency action is a rule and regulation, a person subject to that rule; or
“(d) a person eligible for standing under another provision of law.”
The appellants claim that they have standing to challenge the KDHE’s issuance of the landfill permit to Waste Connections under either subsection (b), as parties to the agency proceedings that led to the action, or subsection (d), as persons eligible under another provision of law. The Court of Appeals held that the appellants have standing to sue under subsection (b) pursuant to this court’s decision in FACT. Board of Sumner County Comm’rs, 38 Kan. App. 2d at 561. Waste Connections argues that the Court of Appeals’ interpretation of K.S.A. 77-611(b) in this case was erroneous because the court failed to take into account the definition of a party under K.S.A. 77-602(f) and focused on the appellants’ participation in the agency determination instead of their participation as parties to the proceedings.
The KJRA defines “party to agency proceedings,” as the term is used in K.S.A. 77-611(b), as “[a] person to whom the agency action is specifically directed” or “a person named as a party to any agency proceeding or allowed to intervene or participate as a party in the proceeding.” (Emphasis added.) K.S.A. 77-602(f); see also W.S. Dickey Clay Mfg. Co. v. Kansas Corp. Comm’n, 241 Kan. 744, 750, 740 P.2d 585 (1987) (applying K.S.A. 77-602[f][2]). The district court correctly determined that KDHE’s grant of permit to Waste Connections was not specifically directed at the appellants. Likewise, none of the appellants were named as a party during the permit process, and none of them formally intervened in that process. We may only find that the appellants have standing as “parties] to the agency proceedings” under K.S.A. 77-611(b) if they were “allowed to . . . participate as [parties] in the proceeding” under K.S.A. 77-602(f)(2).
We have discussed K.S.A. 77-602(f)(2) in only one previous case — Dickey Clay, 241 Kan. 744. In that case, W.S. Dickey Clay Manufacturing Company sought judicial review of orders by the Kansas Corporation Commission (KCC) relating to a franchise agreement between the City of Pittsburg and the Gas Service Company. Although the KCC provided notice of the proceedings regarding the franchise agreement, Dickey Clay was not a “ party, intervenor or protestant’ ” in that process. 241 Kan. at 746. The KCC also held a public hearing regarding the agreement; an employee of Dickey Clay attended this hearing but “ ‘did not formally enter an appearance, present any testimony, or otherwise participate.’ ” 241 Kan. at 746. Only after the KCC issued the orders in question and denied requests by the City of Pittsburg and the Gas Service Company for a rehearing did Dickey Clay file a motion to intervene. The KCC denied this motion.
Dickey Clay filed a petition for judicial review under the KJRA. The district court ruled that Dickey Clay s motion for intervention was untimely, and this court agreed that Dickey Clay “did not take timely steps to become a party to the proceedings or to perfect its appeal.” 241 Kan. at 749.
More important, we held that Dickey Clay could not challenge the agency action because it did not have standing under K.S.A. 77-611, basing our decision on the definition of a party in K.S.A. 77-602(f). After quoting the language of K.S.A. 77-602, this court explained that “[bjecause the action was not specifically directed toward Dickey Clay and Dickey Clay failed to intervene, it does not have standing under [K.S.A.] 77-611(a) or (b).” 241 Kan. at 750.
Amicus curiae Holcomb Common Facilities, LLC (Holcomb Facilities), argue that this court’s decision in Dickey Clay indicates that a person may only have standing under K.S.A. 77-611(b) if the person was a named party in the agency proceeding or successfully intervened in that proceeding. We do not agree that Dickey Clay defines “party” so narrowly.
Throughout Dickey Clay, this court indicated that Dickey Clay did not participate in the agency proceedings regarding the franchise agreement until after the KCC had issued its orders. See 241 Kan. at 746, 749. Although the court did state that Dickey Clay did not have standing under K.S.A. 77-611(b) because it was not a named party and failed to intervene, we did not consider whether Dickey Clay was a “party” under K.S.A. 77-602(f)(2) as a person “allowed to . . . participate as a party in the [agency] proceeding” under K.S.A. 77-611(b), which is the precise issue that must be resolved in the case we now consider. Had Dickey Clay participated at all in the process leading up to issuance of the orders in question as a “protestant” to the agency action as appellants did in this case, Dickeu Clay may have been decided differently. See 241 Kan. at 746.
The question before us is one of first impression calling for construction of the statutory language in K.S.A. 77-602(f)(2) that defines a “[p]arty to agency proceedings” or “party” as “a person . . . allowed to . . . participate as a party in the proceeding.” The interpretation of a statute is a question of law that an appellate court reviews de novo. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
When courts are called upon to interpret statutes, the fundamental rule governing our interpretation is that “the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts “need not resort to statutory construction.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Instead, “[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.” State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004).
Where a statute’s language is subject to multiple interpretations, however, a reviewing court “may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000). Generally, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). We ascertain the legislature’s intent behind a particular statutory provision “from a general consideration of the entire act. Effect must be given, if possible, to the entire act and eveiy part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]” In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989); see also State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Thus, in cases that require statutory construction, “courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia.” Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).
As we have previously indicated in this opinion, the KJRA’s definition of “party to agency proceedings” as someone who is allowed to participate “as a party” to the agency proceedings is far from clear. See K.S.A. 77-602(f)(2); K.S.A. 77-611(b). We therefore must employ principles of statutory construction to determine what the legislature intended when it adopted the standing provisions of the KJRA.
Black’s Law Dictionary 1154 (8th ed. 2004) defines a “party” as “[o]ne who takes part in a transaction.” In other words, the determination as to whether a person is a party is defined by that person’s participation in a lawsuit or other action (such as the drafting of a contract). This definition is consistent with the principles of the KJRA because K.S.A. 77-602(f) and K.S.A. 77-611(b) indicate that a person is a party for purposes of standing if that person “participate^]” in the agency “proceedings.” This court must therefore determine what is meant by an agency proceeding and what is required in terms of participation in that proceeding.
Waste Connections argues that an agency proceeding, as the term is used in the KJRA, should be narrowly interpreted as being synonymous with “hearing” or “adjudication.” It does not offer any support for or explanation of this interpretation. Our review of other provisions of the KJRA, however, reveals that the legislature intended for the term “proceeding” to be read more broadly.
K.S.A. 77-612, which requires that persons exhaust all administrative remedies before filing a petition for judicial review under the KJRA, states as an exception to this requirement that “[a] petitioner for judicial review of a rule or regulation need not have participated in the rulemaking proceeding upon which that rule and regulation is based.” (Emphasis added.) K.S.A. 77-612(a). Administrative rulemaking generally does not involve public hearings unless specifically provided for by other statutes or regulations. Instead, rulemaking generally involves a proposed rule, a public notice and comment period, and the issuance of a final rule along with responses to the comments. See generally K.S.A. 77-415 et seq. (setting forth the procedures for administrative rulemaking). Despite these limited procedures, the KJRA refers to the rule-making process as a proceeding — the same term used in its definition of standing under K.S.A. 77-611(b).
Likewise, K.S.A. 77-615, which governs the notice requirements for petitions of judicial review, specifically refers to “adjudicative proceedings.” (Emphasis added.) K.S.A. 77-615(b). If the legislature intended the term “proceeding” as it is used in the KJRA to refer only to adjudications, there would have been no reason to include this descriptive qualification in the notice statute. In the same way, the legislature could have limited standing under the K.S.A. 77-611(b) to persons who participated in adjudicative proceedings as it did in terms of notice under K.S.A. 77-615(b), but it did not do so.
Reading these statutes together, we find the legislature intended the term “proceeding” as it is used in the KJRA to be read broadly to refer to the process by which an agency carries out its statutory duties. Under this broad reading, we find that the permit process that the KDHE undertakes when considering whether to grant a landfill permit is a proceeding within the meaning of the KJRA.
The landfill permit process is governed by K.A.R. 28-29-6a. This regulation provides that “any interested person may submit written comments” during the public comment period and these comments “shall become a part of the permit record and shall be considered in making a final decision on the proposed permit action.” K.A.R. 28-29-6a(b). The regulation further states that the KDHE may schedule a public hearing if “there is sufficient local interest in a proposed permit action” and “[a]ll written and verbal comments received during a public hearing . . . shall become a part of the permit record and be considered in making a final decision on the proposed permit action.” K.A.R. 28-29-6a(c).
The appellants allege in their petition for judicial review that they participated in the permit process under both of these sections. In particular, the Board commissioned the Terrane study to evaluate Waste Connections’ proposed site plan and submitted that study to the KDHE. Members of Tri-County, including appellant Holland, attended the public hearings held during the landfill process and submitted comments to the KDHE at that time. We must determine whether this participation was sufficient to confer standing under K.S.A. 77-602(f) and K.S.A. 77-611(b).
Although we did not discuss participation in terms of K.S.A. 77-602, our decision in FACT focused on the question of participation in agency proceedings under K.S.A. 77-611(b). In that case, anon-profit organization challenged the KDHE’s issuance of a permit to Murphy Farms, Inc., for a hog farm. The agency had granted the permit under the National Pollution Discharge Ehmination System (NPDES), a delegated federal permitting program under the Clean Water Act, 33 U.S.C. § 1251 et seq. (1994). Members of FACT (the organization) submitted comments and participated in a public hearing before the permit was issued. After the KDHE granted the permit, FACT formally requested that the permit be revoked, as the governing regulations required.
When the KDHE did not respond to FACT’S request for a revocation of the permit, FACT filed a petition for judicial review under the KJRA. The district court dismissed the petition under K.S.A. 60-212(b)(6), ruling that FACT lacked standing to sue.
We reversed, finding that FACT had standing under both K.S.A. 77-611(b) and the traditional test for organizational standing discussed in NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000). FACT, 268 Kan. at 810-11. In reaching this conclusion, we found that before we could consider the question of organizational standing, we were required to determine whether FACT had standing under the KJRA. 268 Kan. at 807. Although we rejected the organization’s claims that it had standing under K.S.A. 77-611(d), this court ultimately concluded that FACT had participated as a party to the agency proceedings, explaining:
“FACT argues that it fully participated in the permitting process as allowed by K.A.R. 28-16-61. K.A.R. 28-16-61(b) requires KDHE to provide for a public notice and comment period during the NPDES permitting process. During the public comment period, any interested person may submit written comments on a draft permit and may request a public hearing. K.A.R. 28-16-61(c). ‘All comments shall be considered in making the final decision and shall be answered as provided in subsection (e) of this regulation.’ K.A.R. 28-16-61(c). Clearly KDHE must allow citizens to comment on its proposed permits, and it also must respond to their comments.
“At the request of FACT and others, a public meeting was held in Hodgeman County. At that meeting, members of FACT and two consultants hired by FACT submitted comments on the pending permit for Murphy’s hog farm. . . .
“FACT participated in the agency proceedings (permit review and public comment) that led to the agency action (granting the permit). During oral argument before us, KDHE’s counsel said: ‘[T]hose citizens did both as a group and individually have the opportunity to participate in the permitting process through the public hearing process, through the opportunity to submit comments on the permit.’ We hold that FACT is entitled to assert standing as a ‘person who was a party to the agency proceedings that led to the agency action’ under K.S.A. 77-611(b).” 268 Kan. at 810.
The court also determined that FACT had organizational standing under the three-prong test of NEA-Coffeyville. FACT, 268 Kan. at 810-11.
Our discussion in FACT demonstrates that interested persons’ submission of written comments during a public notice and comment period and all persons’ comments made during a public hearing held by an agency both qualify as participation within the meaning of the KJRA’s standing requirements. In its decision in this case, the Court of Appeals correctly found that the actions of FACT were analogous to the actions of the appellants here. See Board of Sumner County Comm’rs, 38 Kan. App. 2d at 561-63.
Waste Connections argues that the Court of Appeals’ reliance on FACT was unfounded because it failed to take into account the regulatory differences between the NPDES process in FACT and the landfill permit process in this case. For support of this claim, Waste Connections cites the last paragraph in FACT, where — after having determined that FACT had standing under the KJRA and NEA-Cojfeyville, see 268 Kan. at 810-11 — the court closed with the following observation:
“The KDHE administrative regulations support FACT’S standing as a ‘party.’ K.A.R. 28-16-62(g) specifically governs the procedures for modifying, revoking, reissuing, and terminating NPDES permits. Any interested person may request that a permit be modified, revoked, reissued, or terminated. K.A.R. 28-16-62(g)(l) (as FACT did here). Denials of such requests are not subject to public notice, comment, or hearings. However, the regulations state that this informal process is ‘a prerequisite to seeking judicial review of agency action’ in denying the request. K.A.R. 28-16-62(g)(2). This is a clear indication that citizens are allowed to both comment on proposed NPDES permits and seek judicial review of permit granting.” 268 Kan. at 811.
Waste Connections asserts that these observations by the court indicate its holding was based in part on the NPDES process’ provision stating that “[a]ny person” may request that a permit be revoked, and such a request was a prerequisite for seeking review under the KJRA. Waste Connections points out that no such provision exists in the landfill permit process.
There are several problems with Waste Connections’ interpretation of FACT. First, the above quoted language in FACT followed our determination that FACT had both standing under K.S.A. 77-611(b) and NEA-Coffeyville. See 268 Kan. at 810-11. We explained that the specific provisions of the NPDES permit process “support[ed]” our previous conclusion; we did not state that our decision in FACT was based on the particularities of that process. The Court of Appeals correctly found that this court’s observations in the above quoted language were illustrative of — not inherent to— its decision. See Board of Sumner County Comm’rs, 38 Kan. App. 2d at 561-63.
In addition, Waste Connections’ narrow interpretation of FACT is contrary to our previous conclusion that the term “proceeding” should be read broadly under the KJRA. Our consideration of whether a person participated in the underlying proceedings for purposes of the KJRA is guided by the particular process governing an agency action. The fact that different actions may be subject to different processes does not necessarily render participation in those processes any less meaningful for purposes of standing under the KJRA.
The Court of Appeals correctly found that the appellants’ actions in this case qualified as participation under the KJRA pursuant to this court’s decision in FACT. The appellants’ petition states that the Board submitted comments to the KDHE along with the Terrane study that the Board commissioned. The petition similarly states that members of Tri-County, including Holland, offered comments and expressed concerns at the public hearings held in Harper County. On the face of the petition and all inferences drawn therefrom, the appellants have demonstrated that they participated in the agency proceedings that led to the KDHE’s issuance of the permit in this case. We affirm the Court of Appeals conclusion that the appellants have standing to file a petition for judicial review under K.S.A. 77-611(b).
Before turning to the question of whether the appellants meet the requirements of standing under the traditional tests for individuals and associations, we find that two additional clarifications should be made regarding arguments raised by Waste Connections and amicus Holcomb Facilities.
First, Waste Connections argues extensively in its petition for review that the appellants have not substantiated the claims regarding their participation in the agency proceedings with evidence. This claim is without merit, as the underlying action was dismissed for lack of standing on the face of the petition itself before discovery had commenced. As such, we only consider the allegations of the petition itself — and all reasonable inferences therefrom — in determining whether the appellants have standing to file the petition for judicial review. See McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, 634, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).
Second, amicus Holcomb Facilities argues that a ruling that the appellants have standing under the KJRA would lead to unworkable notice requirements in light of K.S.A. 77-615(b). This statute provides that a petitioner “shall give notice of the petition for judicial review to all other parties in any adjudicative proceedings that led to the agency action.” Amicus argues that if we determine the appellants have standing under K.S.A. 77-611(b), K.S.A. 77-615(b) would require notice be given to at least the 317 persons who submitted comments to the KDHE regarding the permit in question.
These concerns are unfounded. K.S.A. 77-615(b) relates only to adjudicative proceedings, not to the permit process at issue in this case. In adjudications, which are quasi-judicial in nature, the notice requirement of K.S.A. 77-615(b) would not be any more unwieldy than the notice requirements in complicated civil cases. In all other cases, petitioners for judicial review need only serve notice “upon the agency head, on any other person or persons designated by the agency head to receive service, on any agency officer designated to receive service in an order or on the agency officer who signs an order.” K.S.A. 77-615(a). The appellants in this case complied with this requirement.
Because the appellants participated in the landfill permit process in this case by offering written and oral comments, the appellants have standing to challenge the KDHE’s issuance of the permit under K.S.A. 77-611(b).
(2) Traditional Standing Tests
In order to have standing to file suit in Kansas courts, the appellants must also demonstrate that they meet the traditional requirements for standing previously articulated by this court. See FACT, 268 Kan. at 807, 810-11. In particular, a person must demonstrate that he or she suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct. See Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996); Harrison v. Long, 241 Kan. 174, 176-77, 734 P.2d 1155, appeal dismissed 484 U.S. 804 (1987). An association has standing to sue on behalf of its members when “(1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested require participation of individual members. [Citation omitted.]” NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000).
In its petition for review, Waste Connections argues that the Court of Appeals erred in finding that the appellants had standing under these traditional standards because (1) it relied on a previous decision of the Court of Appeals, not on the record in this case, to determine that Tri-County had associational standing; (2) it did not state whether the Board had associational standing under the NEACojfeyville standard; and (3) it did not consider whether Holland had standing to challenge the action, as he has apparently died during the pendency of this appeal. Each of these arguments is considered in turn.
Tri-County
The Court of Appeals’ conclusion that Tri-County had associational standing relied primarily on another opinion by the Court of Appeals—Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm’rs, 32 Kan. App. 2d 1168, 95 P.3d 1012, rev. denied 278 Kan. 852 (2004) — in which Tri-County was also involved. That case involved a zoning challenge to a special use permit for the landfill issued by the Harper County Board. The Court of Appeals determined that Tri-County had standing to challenge that permit because it met the associational standing requirements of NEA-Coffeyville, 268 Kan. at 387. Tri-County, 32 Kan. App. 2d at 1174-75.
Waste Connections argues that it was improper for the Court of Appeals to rely on Tri-County because the injury alleged in that case — the injuries to be caused by the special use permit — were qualitatively different than the injury alleged in this case. This argument is without merit. The Court of Appeals’ discussion of standing during the zoning appeal demonstrates that the interests considered there dealt with the injuries that members of Tri-County would suffer if a landfill would be approved. The court applied the three-prong test for associational standing, explaining:
“(1) The individual members of the association have standing in their individual capacity since they live within 1,000 feet of the landfill; property owners this close to a landfill site are aggrieved because they potentially suffer a substantial grievance and a loss of a pecuniary interest. (2) Since the stated purpose of the corporation is to protect the environment, the prosecution of this lawsuit is wholly consistent with the association’s purpose. (3) The participation of the individual members is not necessarily required.” 32 Kan. App. 2d at 1174-75.
Given the procedural posture of the current appeal — a dismissal for lack of standing on die basis of the petition itself — the Court of Appeals in this case should have based its conclusion regarding Tri-County’s associational standing on the face of the petition for judicial review and reasonable inferences therefrom, not on another panel’s decision involving a similar issue. Nevertheless, an examination of the petition demonstrates that Tri-County meets the requirements for associational standing for reasons similar to those described in the previous appeal.
The petition alleges that members of Tri-County were present at the public hearing held by KDHE and commented on the potential landfill at that hearing. The petition further states that members of Tri-County “will suffer damage to their real property and water supply if the Plumb Thicket landfill site is unsuitable under applicable legal requirements and if it leaks, causing contamination to the soil, groundwater and surface water.” It can be inferred from the petition that members of Tri-County will suffer imminent injury if the challenge to issuance of landfill permit is not permitted. The members would therefore have standing to sue individually.
Likewise, the petition states that Tri-County is a nonprofit organization “organized for the purpose of preserving and enhancing the quality of life in Harper, Kingman and Sumner counties.” The interests that the association seeks to protect by initiating this action — namely, ensuring that any landfill that is located in Harper County meet environmental standards to protect the groundwater supply and river water — are germane to this purpose.
Finally, the claim asserted by Tri-County — that the KDHE’s decision to grant the permit was arbitrary and capricious in that it did not take into account the concerns addressed in the comments, in particular the Terrane and Bums & McDonnell studies — does not require the participation of the individual members.
We agree with the Court of Appeals’ determination that TriCounty meets the standards for associational standing as set forth in NEA-Coffeyville. See 268 Kan. at 387; 38 Kan. App. 2d at 563-64.
The Board
Waste Connections asserts that the Court of Appeals erred because it did not determine whether the Board met the requirements for associational standing. Waste Connections correctly points out that government entities must meet the requirements of associational standing in order to bring a cause of action. See Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343-44, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977).
The petition states that the Board is “charged with protecting the health, safety and general welfare of its citizens pursuant to” K.S.A. 19-101 et seq. The petition also states that the proposed landfill could contaminate the water in the Chikaskia River, which provides a water source for some residents of Sumner County, if the site fails to meet certain regulatory and environmental standards. It appears from the face of the petition that these individuals represented by the Board would have standing to challenge the agency’s decision under the traditional injury test. Such a challenge is consistent with the Board’s charge to protect the residents of Sumner County, and the challenge to the KDHE’s issuance of the permit does not require the participation of individual residents. Based on the allegations of the petition, we conclude that the Board has standing to bring suit under the traditional associational standing test.
Holland
Waste Connections contends that Holland does not have standing to sue because he has died during the course of this appeal and only owned a life estate in the property that the petition alleges to be implicated.
The petition states that Holland “owns a life estate in 400 acres in Kingman County . . . directly north of the proposed Plumb Thicket landfill” and that this property “contains a pond that drains a portion of the proposed Plumb Thicket landfill site.” The petition further states that this property “and its water supply can and will be irreparably harmed by the improper permitting, development and operation of the Plumb Thicket landfill.”
From the face of the petition, Holland demonstrated that he had a sufficient interest in the outcome of this case to have standing to sue individually. If it is true that Holland has died and only had a life estate in that property, it may be that he (or his estate) no longer has a justiciable interest in this controversy. Given the procedural posture of the case before us, however, we hold that Holland should not be dismissed from the case for lack of standing on the basis of the petition alone, though the district court may determine during the course of the case that his estate no longer has a cognizable interest in the outcome.
Conclusion
Based on the allegations of the petition in this case, the appellants have standing to challenge the KDHE’s issuance of the landfill permit to Waste Connections under the KJRA and under traditional standing requirements. The district court erred when it dismissed the petition for lack of standing.
The decision of the Court of Appeals reversing the district court is affirmed; the decision of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
Johnson, J., not participating.
Jack L. Burr, District Judge, assigned.
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The opinion of the court was delivered by
Davis, J.:
We granted Mathew D. Murdock’s petition for review from a Court of Appeals decision affirming his conviction of aggravated battery with a deadly weapon. The defendant claims that the trial court erred by allowing die State to reopen its case to present additional evidence on an element of the offenses charged. He also claims that he was not adequately represented by counsel and that the trial court erred when responding to a jury question during its deliberations. We affirm.
Facts
In November 2004, Lucas Diehl confronted Murdock at a party in Concordia, Kansas, asserting that the defendant had slashed the tires on Diehl’s truck. The two men continued to exchange words, and the defendant challenged Diehl to a fight. Diehl declined and walked a short distance away.
Allan Jackson attempted to calm the defendant, who showed Jackson a set of brass knuckles that he wore on his right fist. Jackson left Murdock to warn Diehl about the brass knuckles. While he and Diehl were talking, the defendant approached and struck Diehl on the top of the head. Diehl fell to the ground. When he was able to stand, Jackson attempted to help Diehl get away from the confrontation, but the defendant again struck Diehl on the back of the head. Diehl’s head bled profusely, but he did not seek medical treatment. He did, however, complain of headaches and dizziness for several days after the incident.
After the State rested its case, Murdock moved for a judgment of acquittal, claiming that the State had failed to produce evidence that he struck Diehl with an object that could constitute a deadly weapon. The district court overruled the motion, stating that the jury could conclude based on circumstantial evidence that the defendant had struck Diehl while wearing brass knuckles.
During a short recess, the prosecutor reviewed the record and discovered that Jackson had never actually testified that the defendant wore the brass knuckles when he struck Diehl. Over the defendant’s objection, the district court allowed the State to reopen its case in chief in order to recall Jackson. Jackson subsequently testified that he saw the defendant wearing the brass knuckles immediately after striking Diehl. The State then rested its case again.
After the district court denied a second motion for judgment of acquittal, Murdock moved for a mistrial based upon ineffective assistance of counsel, claiming that defense counsel’s behavior in raising the issue of insufficiency of the evidence at the close of the State’s case in chief — and thus bringing the question to the State’s attention — was constitutionally deficient. The district court denied this motion.
At the close of all evidence, the case was submitted to the jury. During deliberations, the jury requested clarification on the difference between aggravated battery with a deadly weapon and aggravated battery in a manner whereby great bodily harm, disfigurement, or death can be inflicted. The court called the jury into the courtroom in order to clarify what was being asked and immediately provided a lengthy response to that question from the bench. Defense counsel did not object to the court’s explanation.
The jury resumed deliberations and found Murdock guilty of aggravated battery by use of a deadly weapon — K.S.A. 21-3414(a)(1)(B). The defendant appealed, and the Court of Appeals affirmed his conviction in an unpublished opinion. State v. Murdock, No. 95,365, unpublished opinion filed August 17, 2007.
Petition for Review
Murdock raises three issues in his petition for review of the Court of Appeals opinion: (1) whether the district court erred when it denied the defendant’s motion for judgment of acquittal at the close of the State’s case in chief and instead permitted the State to reopen its case in order to present additional evidence; (2) whether the court erred when it denied his motion for a mistrial based on ineffective assistance of counsel; and (3) whether the court’s response to the juiy’s question during deliberations was reversible error.
We note at the outset that the first issue actually presents two separate but related questions. The first question involves the district court’s denial of the defendant’s motion for acquittal. The second deals with the district court’s decision to permit the State to reopen its case in order to present additional testimony on elements of the charged offense. Our standard of review for each question is different, so we examine each of these questions individually.
After reviewing all of the issues raised, we conclude that no reversible error occurred and affirm.
(1) Motion for Judgment of Acquittal
The defendant argues that the district court erred when it denied his original motion for judgment of acquittal, claiming that the State failed to present any evidence that he had struck Diehl with a deadly weapon or in a manner in which great bodily harm could be inflicted.
Standard of Review
K.S.A. 22-3419(1), which governs Kansas courts’ consideration of motions for judgment of acquittal, provides in relevant part:
“The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes charged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes.”
Just as a district court must base its ruling regarding a defendant’s motion for judgment of acquittal on die sufficiency of the evidence, an appellate court reviewing a district court’s grant or denial of such a motion examines the sufficiency of the evidence to support the conviction. State v. Cavaness, 278 Kan. 469, 479, 101 P.3d 717 (2004). The proper standard for considering a district court’s ruling on a motion for judgment of acquittal is whether, after reviewing all of the evidence in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. 278 Kan. at 479.
Discussion and Analysis
After the State presented its evidence and rested, the district court granted a recess and held a conference on the record in chambers in the presence of the judge, counsel, and the defendant. At this time, defense counsel moved for a judgment of acquittal on the basis that there was no evidence that the defendant struck the victim in a manner whereby great bodily harm was inflicted or with any kind of an object that could constitute a deadly weapon. The following exchange occurred in chambers:
“[Defense Counsel]: Judge, I would like to make a motion for judgment of acquittal. The state [has] charged Mr. Murdock with intentionally causing bodily harm with a deadly weapon or in a manner whereby great bodily harm, disfigurement, or death could be inflicted. The evidence has not indicated that Mr. Murdock struck Mr. Diehl with any kind of an object that would constitute a deadly weapon.
“The testimony at best is that Mr. Jackson saw an arm come around, and Mr. Diehl got struck, and then he was struck a second time. But Mr. Jackson did not testify that he saw Mr. Diehl get struck with brass knuckles. He only testified to that he saw brass knuckles in the possession of Mr. Murdock.
“Further, before the incident even occurred there’s been no testimony that the manner in which Mr. Diehl had been struck was capable or could cause great bodily harm, disfigurement or death. So I would submit to the Court that the evidence is insufficient to sustain a conviction on either theory, either deadly weapon or manner whereby.
“THE COURT: Mr. Walsh?
“[Prosecutor]: My recollection of the testimony was that he did early on in the testimony indicate that when he was struck he saw the fist with the brass knuckles come around and strike Mr. Diehl. Now, if there’s confusion about that, I would ask the Court the leave to allow us to call him up and ask him that directly. I have rested. We have had no evidence from the defense at this time.
“If there is some of that, I would certainly like to allow just veiy brief testimony to cover that issue, whether the brass knuckles were on his hand or not when those blows were struck. My recollection was that he did indicate that. I’m not questioning Ms. McKenna’s recollection. I have that in my notes, but that could have been just my outline. But I would certain[ly] like to ask him that. I would ask leave to just allow us [to] call him back to state that.
“THE COURT: Well, that motion would be denied, and the motion for directed verdict is likewise denied. There’s certainly evidence, if not direct, substantial [evidence, then] circumstantial evidence from which the jury could conclude guilt beyond a reasonable doubt on either theory.”
Before the defendant’s motion for acquittal and during the State’s case in chief, Jackson testified that during his talk with Murdock, the defendant showed him a set of brass knuckles that he was wearing on his right hand. According to Jackson, the defendant said that “he was tired of it [meaning the dispute between the defendant and Diehl] going on, and he was going to take care of it.” Jackson testified that he was concerned about these statements and the defendant’s possession of the brass knuckles, so he went directly from his conversation with the defendant to warn Diehl of the danger. Jackson explained that when he went to warn Diehl, he “didn’t even get all the words out of [his] mouth” when the defendant struck Diehl from behind. Jackson demonstrated during his testimony that the defendant struck Diehl with his right hand.
Jackson further testified that when the defendant hit Diehl, Diehl’s head “flew forward,” and Jackson heard a “knock” like one hears “on TV where they crack coconuts open, that initial knock before it splits open.” Although he did not check Diehl’s head after the first blow, Jackson stated that he put his hand behind Diehl’s head after the second blow “to protect it in case it got hit again,” and his hand became covered with blood.
Diehl testified that when Murdock struck him, he “felt something hard” and “solid” hit him in the back of the head. He explained that after the blows, he felt blood “running” down his neck. The State offered as evidence pictures of the cuts on the back of Diehl’s head to corroborate this testimony. Diehl also testified that he experienced “dizzy spells and . . . headaches” for 3 days after the incident.
Murdock argues that the district court erred in denying his motion for acquittal because, although Jackson testified that defendant had been wearing the brass knuckles shortly before striking Diehl, none of the State’s witnesses testified that the defendant was wear ing brass knuckles when he hit Diehl. Thus, according to the defendant the State did not present sufficient evidence that he struck Diehl with a deadly weapon, or struck him in such a manner whereby great bodily harm could be inflicted.
Murdock also argues the district court erred when it denied his motion for judgment of acquittal because it was under the impression that Jackson had testified that he observed Murdock wearing the brass knuckles as he struck Diehl. Murdock asserts that because the district court had a fundamental misunderstanding as to the evidence in the record, it was an abuse of discretion to deny the motion and yet allow the State to reopen its case.
It is true the district court stated that before it conferred with the court reporter, “[i]t was [the court’s] recollection that there had been some testimony” about the brass knuckles on the defendant immediately prior to the blow to Diehl. Thus, Murdock is correct that the district court was under the impression that such evidence was in the record when it denied his motion for judgment of acquittal.
Murdock’s argument seems to mingle and confuse the standards for reviewing a district court’s denial of a motion for judgment of acquittal with a district court’s decision to permit the State to reopen its case to present additional evidence. As we discuss later in this opinion, a court has broad discretion as to the latter determination. However, K.S.A. 22-3419(1) states that a court “shall order the entry of judgment of acquittal” if the evidence offered is insufficient to support the conviction. (Emphasis added.) The decision to grant a motion for judgment of acquittal is not discretionary. Instead, the determinative question for both a district court and an appellate court on review is whether there was sufficient evidence in the record at the time of the motion on which a rational factfinder could find the defendant guilty beyond a reasonable doubt. See Cavaness, 278 Kan. at 479.
For Murdock to be convicted of aggravated battery as charged, the State was required to prove that he “intentionally caus[ed] bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21-3414(a)(l)(B). Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence in the record at the (initial) close of the State’s evidence — when Murdock raised his motion for judgment of acquittal — from which the jury could have found Murdock guilty of either aggravated battery with a deadly weapon or aggravated battery in a manner whereby great bodily harm could be inflicted. Jackson testified that Murdock had been wearing the brass knuckles on his right hand only shortly before that same hand struck Diehl twice in the back of the head, and just after Murdock had told Jackson that he “was going to take care of it.” Diehl explained that he felt something “hard” and “solid” hit his head when Murdock struck. Although Murdock only hit Diehl twice, Diehl’s head bled profusely from the blows. The district court did not err when it denied Murdock’s motion.
Murdock’s motion for judgment of acquittal seems to have been based on a belief that because the State had not offered any direct evidence that the defendant had been wearing brass knuckles when he hit Diehl — namely, testimony that he was observed wearing the knuckles when he attacked — the evidence could not be sufficient to convict him of the crimes charged. Contrary to this position, Kansas courts have long recognized that evidence may be sufficient to support a conviction even where that evidence is wholly circumstantial in nature. For example, in State v. Scott, 271 Kan. 103, 107-08, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001), this court explained:
“A guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence even though the evidence is entirely circumstantial. [Citation omitted.] The probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each. [Citation omitted.]”
Although there was no direct evidence to show that Murdock attacked Diehl while wearing the brass knuckles, there was circumstantial evidence from which a rational jury could base a finding of guilt. Our review of the evidence presented by the State before the defendant moved for judgment of acquittal, when viewed in the light most favorable to the State, convinces us that a rational fact-finder could have found the defendant guilty of aggravated battery under either theory advanced. The district court applied the same standard and concluded that there was “substantial circumstantial evidence from which the jury could conclude guilt beyond a reasonable doubt on either theory.” The district court did not err in denying the defendant’s motion for judgment of acquittal.
(2) Motion to Reopen the State’s Case
Murdock asserts that the alleged error that resulted from the district court’s denial of his motion for judgment of acquittal was compounded by the fact that the court permitted the State to reopen its case to offer additional evidence.
After conferring with the court reporter and counsel, the court noted that Jackson never explicitly stated that Murdock was wearing the brass knuckles at the time that he struck Diehl. Upon this recognition, the court permitted the State to reopen its case for the specific purpose of recalling Jackson. When he was recalled, Jackson testified that he saw Murdock wearing the brass knuckles immediately after each time he struck Diehl.
The Court of Appeals found that by permitting the State to reopen its case, the district court had “reconsidered its ruling” on Murdock’s motion for judgment of acquittal and “essentially set aside its prior ruling.” Murdock, slip op. at 4. The Court of Appeals then concluded that it could consider “all of the evidence presented in the State’s case in chief, including the additional testimony supplied by Jackson,” to determine whether the evidence was sufficient to allow a rational factfinder to find the defendant guilty beyond a reasonable doubt. Slip op. at 4. In support of this conclusion, the panel cited this court’s decision in State v. Copes, 244 Kan. 604, 607, 772 P.2d 742 (1989).
In Copes, this court examined the wáiver rule relating to motions for judgment of acquittal, noting that a defendant whose motion for judgment of acquittal is denied at the close of the prosecution’s case, who later presents evidence on his or her own behalf, may not ordinarily challenge the denial of that motion. 244 Kan. at 607-OS. Copes modified this rule to hold that when, after unsuccessfully moving for acquittal at the close of the State’s case, a defendant presents only rebuttal evidence, he or she has not waived argument regarding the erroneous denial of his or her motion. 244 Kan. at 610-11. Notably, Copes did not involve facts where the State was permitted to reopen its case to submit additional evidence after a motion for judgment of acquittal was denied.
Contrary to the statement by the Court of Appeals, the district court in this case never stated that by allowing die State to reopen its case, it was reconsidering its ruling on Murdock’s motion for judgment of acquittal. The court did explain in its later ruling on Murdock’s motion for a mistrial, discussed later in this opinion, that “the Court has broad discretion making that decision [to allow the State to reopen its case] and felt the [S]tate inadvertently overlooked [the intended testimony] and was entitled to reopen it to complete its record.” The district court did not state that it had permitted the State to reopen its case so that there would be sufficient evidence to convict the defendant.
We emphasize at the outset of our discussion of this issue that the district court’s decision permitting the State to reopen its case does not alter our conclusion that there was sufficient evidence in the record to find Murdock guilty beyond a reasonable doubt at the time that Murdock originally moved for judgment of acquittal. As we have previously indicated, there was sufficient evidence for a jury to find that Murdock was guilty beyond a reasonable doubt of the crime charged when the State originally closed its case in chief, and we need not consider Jackson’s additional testimony on recall in our assessment of the sufficiency of the evidence in this case.
Thus, this case does not involve circumstances where the prosecution has failed to present evidence on a critical element of a criminal charge but nevertheless rested its case and then sought to reopen. The issue framed by Murdock in his petition for review— whether a district court may allow a State to reopen its case in order to prove an element of the crime charged in lieu of granting a defendant’s motion for judgment of acquittal — does not arise in this case. Because there was sufficient evidence in the record at the time that Murdock moved for judgment of acquittal for a jury to conclude that he was guilty beyond a reasonable doubt of the crime charged, the district court correctly denied his motion, and that denial does not factor into our consideration of the district court’s subsequent decision allowing the State to reopen its case.
With these clarifications in mind, we turn to our standard for reviewing the district court’s decision in this case.
Standard of Review
We review a district court’s decision to permit the State to reopen its case after once resting for an abuse of discretion. “It has long been the law of Kansas that the granting of permission to the state to reopen its case rests in the sound discretion of the trial court. [Citations omitted.]” State v. Braun, 209 Kan. 181, 188, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972). Again in State v. Carmichael, 240 Kan. 149, 157, 727 P.2d 918 (1986), this court determined that it is “a matter of discretion whether the trial court permits either or both of the parties to reopen a case for introduction of additional evidence after having rested. [Citation omitted.]”
Judicial discretion varies, depending on the character of the question presented for determination. A district court’s decision is protected if reasonable persons could differ about the propriety of the decision, as long as it was made within and took into account the applicable legal standards. State v. Miller, 284 Kan. 682, 689, 163 P.3d 267 (2007).
Yet while examination of our previously decided cases confirms that we review a court’s decision on a motion to reopen for an abuse of discretion, our past decisions have not sufficiently identified those factors which should guide the district court in its determination of whether to permit either party to reopen its case. Federal cases have considered this question and have developed a list of factors to guide the district courts’ discretion in such matters. As the Sixth Circuit Court of Appeals explained in United States v. Blankenship, 775 F.2d 735, 741 (6th Cir. 1985):
“A motion to reopen is clearly within the discretion of the trial court. In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not ‘imbue the evidence with distorted importance, prejudice die opposing party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.’ United States v. Larson, 596 F.2d 759, 778 (8th Cir. 1979).”
See also United States v. Webb, 533 F.2d 391, 395 (8th Cir. 1976) (stating the district courts should consider “whether the evidence caused surprise to the defendant, whether he was given adequate opportunity to meet the proof, and whether the evidence was more detrimental to him because of the order in which it was introduced”).
Blankenship further notes that the “most important consideration” in determining whether a party should be permitted to reopen its case is “whether the opposing party is prejudiced by reopening.” 775 F.2d at 741. The court continued:
“One of the critical factors in evaluating prejudice is the timing of the motion to reopen. If it comes at a stage in the proceedings where the opposing party will have an opportunity to respond and attempt to rebut the evidence introduced after reopening, it is not nearly as likely to be prejudicial as when reopening is granted after all parties have rested, or even after the case has been submitted to the jury. Where, as in this case, reopening is permitted after the government has rested its case in chief, but before the defendant has presented any evidence, it is unlikely that prejudice sufficient to establish an abuse of discretion can be established.” 775 F.2d at 741.
We believe that the factors identified by the Sixth Circuit in Blankenship provide appropriate guidelines for a district court in responding to a party’s motion to reopen its case after resting. While there may be other factors not mentioned that may govern the unique circumstances of another case, the Blankenship factors provide guidance for a district court’s discretion — and for this court when reviewing the exercise of such discretion.
Discussion and Analysis
After denying the defendant’s motion for acquittal but before returning to the trial before the jury, the court in chambers again considered the State’s request to reopen its case, with the following exchange taking place at that time:
“[Prosecutor]: And Your honor, I would still request that I — without looking at the transcript, be allowed just to call Mr. Jackson back just briefly again, ask him the questions during the blows, if or if he did not see the knuckles on- — -the brass knuckles on Mr. Murdock’s hand. That would be the only question I would ask him.
“[Defense Counsel]: Of course, I would object to that, Judge.
“THE COURT: The evidence is in. And I would say this: If the — when the court reporter has a little time, if you want to go back through that.
“[Prosecutor]: That would be helpful, Judge. Thank you.
“THE COURT: Thank you very much.
“(Proceedings were recessed. Following the recess, proceedings were resumed in chambers with counsel and Mr. Murdock present.)
“THE COURT: We’ll go on the record. The court is in chambers again with counsel. Prior to the court reconvening I suggested Mr. Walsh check with the court reporter to see if her notes would indicate anything about the brass knuckles. It was my recollection that there had been some testimony.
“She was unable to find any in a cursory examination. And Mr. Walsh, as I understand, has again renewed his motion to open the state’s case for the sole purpose of inquiring into this question of whether or not Mr. Allan [Jackson] saw brass knuckles on the defendant immediately prior to a strike, as I understand.
“[Prosecutor]: Or at about the same time; prior — about or after.
“THE COURT: That is your motion?
“[Prosecutor]: That is my motion, Your Honor.
“[Defense Counsel]: And, Judge, I strongly object. I made my motion for judgment of acquittal based on the fact I knew that the witness had not testified that he saw my client, Mr. Murdock, strike Mr. Diehl with brass knuckles. All the testimony has been is that Mr. Diehl was struck from behind while he was standing by him, an arm come around.
“I made my motion for judgment of acquittal based on that lack of testimony. Now, if the Court permits this, I feel like I am not effectively representing Mr. Murdock, having made that motion, and I have not done him the job that I should do. So I believe it’s highly prejudicial to him to allow this testimony to be presented and would object to the state being able to reopen their case.
“THE COURT: Very well.
“[Defense Counsel]: In particular in light of my motion for judgment of acquittal.
“THE COURT: The motion is noted and the state’s motion to reopen is granted.”
A district court has broad discretion to determine when a party should be allowed to reopen its case to offer additional evidence. Carmichael, 240 Kan. at 157; Braun, 209 Kan. at 188. Nevertheless, the decision to allow a party to reopen its case after resting is not one to be taken lightly in a criminal case. In this case, we do not have the benefit of tíre exact reasons that the district court permitted the State to reopen its case, but we do have a full record of the proceedings, and the facts are not in dispute. We are therefore in a position to review the district court’s decision in light of the Blankenship factors.
Timeliness of Motion
The State moved to reopen its case immediately after resting its case in chief and before the defendant offered any testimony or other evidence. The timing of the reopening allowed defendant the opportunity to respond and attempt to rebut the additional evidence. Admitting such evidence at this time of trial would not imbue the evidence with distorted importance, prejudice the opposing party’s case, or preclude the defendant from having an adequate opportunity to meet the additional evidence offered. “Where, as in this case, reopening is permitted after the government has rested its case in chief, but before the defendant has presented any evidence, it is unlikely that prejudice sufficient to establish an abuse of discretion can be established.” Blankenship, 775 F.2d at 741.
Prejudice
We note at the outset of our consideration of prejudice that the evidence sought to be admitted by the State through Jackson’s recall testimony was evidence presented at the preliminary hearing. Jackson’s testimony was thus known to the defendant and the defendant prepared his case knowing he would have to defend against the evidence presented by the State upon the grant of its motion to reopen. It cannot be said that the defendant was surprised by the evidence.
We also find that the evidence the State desired to offer by way of Jackson’s testimony was relevant, admissible, adequate, and helpful to the jury in ascertaining Murdock’s guilt or innocence. The reason given by the State for not presenting this evidence during its case in chief was oversight. This court has previously found that it is within a district court’s discretion to allow a party to reopen its case to correct an “oversight” as to the admission of evidence when the admission of such evidence is not overly prejudicial. See Braun, 209 Kan. at 188-89.
Considering these factors, we conclude that reasonable people could differ about the propriety of the district court’s decision permitting the State to reopen its case in the circumstances of this case. Thus, the defendant has failed to establish that the district court abused its discretion.
(3) Motion for a Mistrial Based on Ineffective Assistance of Counsel
After the State was permitted to reopen its case and present additional evidence, the defendant again moved for a judgment of acquittal. Upon the denial of this motion, his defense counsel moved for a mistrial based on ineffective assistance of counsel, claiming that defense counsel’s behavior in raising the issue of insufficiency of the evidence at the close of the State’s case in chief and thus bringing the deficiency to the State’s attention was constitutionally deficient. The defendant argued before the Court of Appeals and in his petition for review that if the motion for judgment of acquittal had not been raised by defense counsel, there would have been no evidence presented to indicate that the charged crime was committed with a deadly weapon. The district court denied this motion, finding that its decision to allow the State to reopen its case was discretionary and that “the defendant has certainly had competent counsel in this matter. “
Before reviewing the Court of Appeals’ decision on this issue, two important points must be noted. First, defendant’s allegation of ineffective assistance of counsel is based solely on counsel’s action in moving for a judgment of acquittal at the close of the State’s case. Second, the entire thrust of Murdock’s allegation is based upon his belief that he would have been acquitted of the aggravated battery with a deadly weapon had his counsel not brought to the prosecutor’s attention through a motion for judgment of acquittal that there was no evidence a deadly weapon was used by the defendant. This latter contention of the defendant has no basis in fact and is contrary to the evidence. Our previous discussion of the district court’s treatment of the motion for judgment of acquittal demonstrates that there was sufficient evidence in the record for a rational factfinder to conclude beyond a reasonable doubt that the defendant was guilty of either aggravated battery with a deadly weapon or aggravated battery done in a manner whereby great bodily harm could have been inflicted.
The Court of Appeals affirmed the district court’s denial of Murdock’s motion for a mistrial, explaining:
"Murdock argues that his counsel’s decision to move for judgment of acquittal alerted the State to a fatal flaw in its case and gave it the opportunity to correct its error. Murdock seems to be arguing that any defense lawyer in a criminal case who moves for acquittal at the close of the State’s case in chief automatically violates the first prong of the two-prong analysis [for ineffective assistance of counsel claims]. We reject this notion. The district court exercises its discretion in deciding whether to permit the State to reopen its case in chief. [Citation omitted.] The court very well could have refused to reopen the case. [Citation omitted.] Counsel had to make a strategic decision whether to defer the issue of the sufficiency of the State’s evidence and go forward with a defense in the hope that no additional evidence arose to support the State’s case or meet the issue head-on and raise the issue at the close of the State’s case with the realistic expectation that the court was unlikely to permit the State to reopen its case to supply evidence it could have but failed to educe [sic]. Such strategic decisions are not the basis for an ineffective assistance of counsel claim. [Citation omitted.] The district court correctly denied this motion.” Murdock, slip op. at 6.
Standard of Review
An appellate court reviews a district court’s refusal to declare a mistrial for an abuse of discretion. State v. Minski, 252 Kan. 806, 812, 850 P.2d 809 (1993). The latitude allowed a court in exercising judicial discretion varies depending on the character of the question presented for determination. Generally speaking, this court will not find that a district court abused its discretion if reasonable persons could differ as to the outcome of the district court’s decision, as long as it was made within and took into account the applicable legal standards. Miller 284 Kan. at 689. Therefore, this court must determine whether the district court was correct in its underlying determination that Murdock’s defense counsel had provided competent representation.
To demonstrate that his defense counsel failed to provide effective representation as contemplated by the Sixth Amendment to the United States Constitution, Murdock was required to establish (1) that counsel’s performance was constitutionally deficient and (2) that counsel’s deficient performance was so serious as to deprive the petitioner of a fair trial. See Bledsoe v. State, 283 Kan. 81, Syl. ¶ 4, 150 P.3d 868 (2007); see also Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985).
We generally refer to these requirements as the Strickland test, after the United States Supreme Court decision where they were first announced. As this court explained at length in Bledsoe:
“The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that eveiy effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation omitted.]
“Once a defendant has established counsel’s deficient performance, the defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation omitted.]” 283 Kan. at 90-91.
When considering a district court’s determination regarding an allegation of ineffective assistance of counsel, an appellate court determines “ whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have substantial support in the evidence.’ ” Ferguson v. State, 276 Kan. 428, 445, 78 P.3d 40 (2003) (quoting State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 [1997]).
Discussion and Analysis
The district court in this case found that Murdock’s defense counsel had provided competent representation. In other words, the district court found that Murdock had failed to establish the first prong under Strickland and its progeny — that counsel’s performance was constitutionally defective. The Court of Appeals af firmed this determination, finding that counsel’s action in moving for a judgment of acquittal in this case was a matter of trial strategy and did not constitute ineffective assistance of counsel.
This conclusion — that defense counsel’s decision to move for judgment of acquittal at the close of the State’s case did not constitute deficient performance — is correct. As both the district court and the Court of Appeals noted, a district court has considerable discretion in determining whether to allow a party to reopen its case to admit additional evidence. See Braun, 209 Kan. at 188-89. If defense counsel believed that the evidence at the original close of the State’s case in chief was insufficient to support a conviction, then it was objectively reasonable to move for a judgment of acquittal at that time. This decision was a matter of trial strategy and did not constitute deficient performance. Thus, the district court correctly denied Murdock’s motion for a mistrial.
We conclude that defendant’s claim of ineffective assistance of counsel fails upon the first prong of the Strickland test, because defense counsel’s representation did not fall below an objective standard of reasonableness, considering all the circumstances. We do not reach the second prong of Strickland, though we note that it would be difficult to establish a claim of prejudice given that there was sufficient evidence in the record at the original close of the State’s case in chief for a rational jury to convict him of aggravated battery. Contrary to Murdock’s argument on appeal, there is not a “reasonable probability that . . . the result of the proceeding would have been different” if his counsel had not moved for a judgment of acquittal at that time. Bledsoe, 283 Kan. at 90.
Because defense counsel’s behavior in moving for a judgment of acquittal at the original close of the State’s case in chief was not constitutionally deficient, the district court correctly denied his motion for a mistrial based on ineffective assistance of counsel. Accordingly, there is no abuse of judicial discretion.
(4) Court’s Response to the Jury’s Question During Deliberations
Murdock contends that the district court’s response to a question asked by the jury during deliberations constituted an abuse of dis cretion. In particular, Murdock argues that the court’s response went beyond the scope of the question asked and was provided without allowing the defendant an opportunity to provide input as to what an appropriate response to the question might be.
Standard of Review
K.S.A. 22-3420(3) governs a jury’s request for additional information after deliberations have commenced. The statute provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
A district court’s decision to respond to a jury’s request for additional information during deliberations is reviewed for an abuse of discretion. State v. Morris, 255 Kan. 964, 986, 880 P.2d 1244 (1994). In State v. Bandt, 219 Kan. 816, 824, 549 P.2d 936 (1976), this court explained:
“A trial court is vested with a great amount of discretion in answering questions directed to him by a jury after the jury has begun its deliberations. The important consideration is that the jury be properly instructed on the essential issues presented at the trial and this is particularly true in a criminal proceeding where the question presented by die jury involves the basic elements of the criminal offense on which die defendant is being tried.”
This court has also explained that a district court’s decision to provide additional instruction to the jury when a question is submitted during deliberations will be upheld as long as “the instruction so given is not coercive or otherwise objectionable.” State v. Wilson, 169 Kan. 659, 663, 220 P.2d 121 (1950). In other words, the court must determine whether “the rights of the defendant were in any way prejudiced by the action of the trial court in giving the instruction.” 169 Kan. at 663. The Wilson court explained that “the real issue concerning the giving of this instruction is whether it was a correct statement of the law as applied to the facts brought out in the evidence.” 169 Kan. at 663.
Discussion and Analysis
During deliberations, the juiy submitted a question requesting clarification as to the difference between aggravated battery with a deadly weapon and aggravated battery in a manner whereby great bodily harm, disfigurement, or death can be inflicted. The district court consulted with the parties as to the question, and it was decided that the court should call the jury back into the courtroom in order to determine exactly what kind of information the jury was seeking.
When the parties and jury were in the courtroom, the district court asked the presiding juror, “Can you be a little more clear on what your concern is or help me out with your concern?” The presiding juror responded, “We just don’t understand the language between the two of them [meaning the two types of aggravated battery]. What’s the difference between the two?” At this point, the judge requested a copy of the jury instructions and provided the following lengthy response from the bench:
“In instruction No. 9 it states, ‘The defendant is charged with the crime of aggravated battery. The defendant pleads not guilty. Then to establish this charge each of the following claims must be proved.’ And then number one, that the defendant intentionally caused bodily harm to another with a deadly weapon.
“So you could look at the evidence and, for example, if you thought that the evidence showed that there had been brass knuckles used, you could consider whether or not those brass knuckles and the way they were used was a deadly weapon.
“And if your view was that a deadly weapon was used, that these were used in a manner that they were a deadly weapon by Mr. Murdock, then — and if all twelve of you agreed, then your verdict could be that the defendant is guilty of aggravated battery by use of a deadly weapon. Now, it’s in the disjunctive, so that is one way the defendant could be found guilty. And then it says, ‘Or in any manner whereby great bodily harm, disfigurement, or death can be inflicted.’
“And that could be from the evidence, for example, you could perhaps find that even without the use of brass knuckles that the way in which the blow was administered could have — could have resulted in great bodily harm, disfigurement or even death. Now I’m not suggesting that that’s how you should look at the evidence at all. You have to consider all the evidence.
“But I think you just look at it; was there a deadly weapon used and — or then you look to see if this blow, if there was one, if you think there was one, you know, with or without the brass knuckles, was in a way that you could have — it could have resulted in great bodily harm, disfigurement, or death. And then if you can’t agree on either one of those; in other words, if twelve can’t agree on one or the other under aggravated batteiy, then under the instructions you go to simple battery.
“And that, of course, says, ‘If you do not agree that the defendant is guilty of aggravated battery, you should then consider the lesser offense of battery. To establish this charge, each of the following claims must be proved: Number one, that the defendant intentionally caused bodily harm to another person, and that it occurred on November 7th.’
“So in that case, of course, you’re not concerned with whether or not a deadly weapon was used or whether it could have been — whether it was in — administered in a way that could have caused disfigurement or great bodily harm or even death. It’s just whether or not there was any bodily contact or any bodily harm to the alleged victim. So the attorneys and I have discussed this, and we’re just — • that’s about the best we can do right now.
“And so if you would please go back and continue your deliberations. And again, I want to emphasize that by giving those examples of how the juiy could find one form of aggravated battery or another form, I’m not suggesting that should be your verdict at all. I’m simply setting that out there as a possibility in an effort to explain that it could be one or it could be the other.
“But if it is either of those, if it is either of those, all twelve of you are going to have to agree that it’s this one or this one. If you agree on one, for example, then your work’s over. But you work down through them. And if you find nether form of aggravated battery, nor simple battery, then of course, you must find [the] defendant not guilty, which under the evidence could be your verdict. So I regret that you’re having this difficulty. But that’s the best we can do right now. Thank you very much.”
Neither the State nor defense counsel was given the chance to provide additional input regarding the presiding juror’s request for clarification before the district court gave this off-the-cuff response. However, neither the State nor defense counsel objected’ to the court’s explanation.
Murdock does not contend on appeal that the district court should not have responded to the jury’s request for additional information or that the court’s lengthy response to the jury’s question in this case was a misstatement of the law to be applied. Rather, Murdock argues that the district court’s instruction constituted an abuse of discretion for three reasons: (1) by providing the instruction without allowing defense counsel an opportunity to suggest possible responses or to object to the court’s response; (2) by overemphasizing the alternative ways that the juiy could find the de fendant guilty in light of the evidence; and (3) by responding to the question in open court when the stated purpose for calling the jury into the courtroom was to request clarification on the jury’s question. In essence, Murdock argues that the district court abused its discretion because its response prejudiced the jury against him.
This court has interpreted K.S.A. 22-3420(3) to require “that once the juiy has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is absent voluntarily. [Citation omitted.]” State v. Bell, 266 Kan. 896, 919, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). Even though the statute does not require the court to give counsel and the accused the opportunity to suggest possible responses to the jury question, the Court of Appeals correctly notes that the “better practice [calls] for the trial court to solicit the advice and comments of counsel regarding a jury’s question before formulating an answer.” Murdock, slip op. at 8.
Due to the grave risk of misleading the juiy and the real risk of reversal, a judge responding to a juiy question should avoid extemporaneous discussions with a jury on questions submitted. The better practice is to confer on the record with counsel and the accused before responding to the juiy’s question. Counsel should be given the opportunity to provide input as to the final answer, preferably by way of written recommendations to the judge. Under such circumstances, the risk of misleading the jury or of committing reversible error in the answer given is greatly reduced, and the potential that the answer will help the juiy in its deliberations is greatly increased.
Nevertheless, the crucial issue in reviewing a court’s response to such a question is “whether it was a correct statement of the law as applied to the facts brought out in the evidence.” Wilson, 169 Kan. at 663. In light of this standard, the only question raised by Murdock on appeal that implicates an abuse of the district court’s broad discretion in responding to the jury’s question is the assertion that the instruction overemphasized different ways that the jury could find the defendant guilty in light of the evidence. This court explained in Bell that an instruction, even if erroneous, might be found harmless if it does not place any “undue emphasis on either” guilt or innocence. 266 Kan. at 920. Murdock argues that because the court’s response emphasized the ways the defendant could be found guilty, it cannot be considered harmless.
The district court’s response to the jury question in this case went far beyond what was necessary to explain the clarification between the two types of aggravated battery in question. The district court in this case engaged in a very risky venture by discussing with the jury critical elements of the offense charged without the benefit of notes and without the benefit of input from the parties. Nevertheless, the response was a correct statement of the law. Moreover, although the court’s response did use evidence in the record for examples illustrating the different types of aggravated battery, it did state that the court was “not suggesting” that the defendant was guilty of any of the crimes charged and that the jury must “consider all the evidence.” At the end of the judge’s response, he again stated:
“I want to emphasize that by giving those examples of how the jury could find one form of aggravated battery or another form, I’m not suggesting that should be your verdict at all. I’m just simply setting that out there as a possibility in an effort to explain drat it could be one or it could be the other.”
The district court’s response to the jury question was not an incorrect statement of the law as applied to the facts brought out in the evidence. After reviewing the district court’s response in its entirety, we conclude that the answer given does not overemphasize either Murdock’s guilt or his innocence. Instead, the response was a genuine attempt by the district court — albeit a risky one- — • to explain the elements of the offense in response to the jury question. Thus, we conclude that the court’s response did not constitute an abuse of discretion.
As a final note, Murdock did not object to the district court’s response to the jury’s question at any time during that response or even after the response was concluded. This court ordinarily views jury instructions under a clearly erroneous standard where no objection was raised at the time the instruction was given. See State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). “ Tnstruc tions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citations omitted.]” State v. Trotter, 280 Kan. 800, 805, 127 P.3d 972 (2006). In our opinion there is no real possibility the jury would have rendered a different verdict if the response had not been given.
The decisions of the district court and Court of Appeals are affirmed.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found Ronnie G. Whitehead (defendant-appellant) guilty of two counts of possession of heroin. (K.S.A. 1978 Supp. 65-4127a.)
The appellant contends the trial court erred in admitting certain testimony by Ms. Diane Presley; and in failing to give a limiting instruction concerning the use of that testimony.
On the evening of December 29, 1977, officers of the Wichita Police Department, armed with a search warrant, entered a residence at 1709 Looman, Wichita, Kansas, seeking heroin. The appellant, Diane Presley, and a young child were present during the search. Two balloons of heroin were found lying beneath some women’s clothing in a drawer of the bedroom dresser. A torn balloon was found on the floor of the bedroom closet, and a partial balloon was discovered at the bottom of a brown paper sack near the closet. Both the appellant and Diane Presley were arrested for possession of heroin.
The police officers testified that the appellant was dressed in pajamas when they searched the house. Evidence was presented that some male clothing in the closet belonged to the appellant, and that he may have been living with Ms. Presley on an irregular basis. The Looman address was Ms. Presley’s residence. Ms. Presley testified that the appellant is the father of one of her children.
Another search was conducted by Wichita police officers on January 21,1978. The search warrant was executed on a residence at 2422 East 20th Street, Wichita, Kansas. The officers were searching for heroin. Three persons were inside the residence; the appellant, Otis Goodwin and Marshall Bottoms. Upon entering the residence, police officers observed Marshall Bottoms run to the bathroom and close the door. They then heard the toilet flush. The appellant and Otis Goodwin were observed running to the bedroom, where they were found and searched. A gold compact containing eight balloons of heroin was found on the bed. Marshall Bottoms was searched and found to have $331 in his possession. Neither the appellant nor Otis Goodwin had any substantial amount of money with them. The appellant, Otis Goodwin, and Marshall Bottoms were arrested for possession of heroin.
During the trial the State called Detective Charles Herbel as a witness. Detective Herbel had participated in both searches. After describing the January search and arrest, Detective Herbel was asked on direct examination by the State, whether he was familiar with the narcotics term “buy bust?” The appellant objected, arguing that testimony about drug sales was irrelevant to the charges of possession. The trial court overruled appellant’s objection. Detective Herbel then described a “buy bust”; estimated the street value of the heroin found in the January search; and testified to the amounts of money found on the appellant, Goodwin, and Bottoms. Detective Herbel was also permitted to testify about the quantity of heroin normally used by an addict. He stated that the eight balloons of heroin in the gold compact would be more than a person would possess unless he was involved in selling drugs.
Diane Presley was the appellant’s first witness. She testified that approximately four months prior to the appellant’s trial she pled guilty to possession of the heroin confiscated during the December 1977 search of her residence. She further testified that the appellant had been at the residence only fifteen minutes before the officers initiated the search. She denied that any of the heroin belonged to the appellant.
On cross-examination, the State asked Ms. Presley from whom she had obtained the heroin. The appellant objected, claiming the question of sale was not relevant to the charges of possession. The court overruled the objection and ordered Ms. Presley to answer the question. She testified that she obtained the heroin from Marshall Bottoms. After further cross-examination the State asked Ms. Presley:
“Q. Did you make a statement during the lunch hour to Detective Herbal and Trainer and myself that they knew Ronnie Gene Whitehead was dealing dope and I knew it and you knew it and why was I going to ask you that question, why was I going to make you testify to it? Did you say that?
“A. Yes.”
The appellant’s counsel did not object to that question.
The appellant took the stand on his own behalf; denied knowledge of the heroin found in the December search; denied having any interest in the heroin. found during the January search; refuted much of the prosecution witnesses’ testimony; and testified to his own innocence on both counts of possession.
The State recalled Detective Steve Trainer on rebuttal. Detective Trainer was asked the following:
“Q. Did she [Ms. Presley] ever make any statements to you about whether Ronnie Gene Whitehead was dealing in heroin?
“A. Yes, she did.
“Q. Do you recall that statement?
“A. Well, during the course of the conversation, Diane said, ‘Well — ’ pointing to you, myself, and then Detective Herbal- — -‘You guys know that I’ve been using heroin, that Ronnie Gene deals heroin, so why have you got me down here messing with me? You already know it and you don’t need to be messing with me any more.’ ”
The jury returned guilty verdicts on both counts of possession of heroin.
The appellant first contends that the trial court erred in allowing Ms. Presley to testify that she knew the appellant was “dealing dope.” He argues that the admission of that testimony was contrary to K.S.A. 60-421 and 60-455. He further argues that the trial court abused its discretion in not weighing the prejudicial effect of that testimony against its relevancy and probative value.
The State contends that the absence of contemporaneous objection precludes consideration of the alleged erroneous admission of Ms. Presley’s testimony.
We have carefully examined the record and found no contemporaneous objection was made when the question was asked. Failure to make timely, specific objection to the admissibility of evidence will bar consideration of the admissibility question on appellate review. K.S.A. 60-404; State v. Phipps, 224 Kan. 158, 160, 578 P.2d 709 (1978); State v. Fisher, 222 Kan. 76, 83, 563 P.2d 1012 (1977); State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976).
Ms. Presley’s testimony, which followed Detective Herbel’s description of drug sale terminology and practices, was admissible for only limited use. Evidence of prior drug dealing tended to prove intent, knowledge and absence of mistake or accident under the provisions of K.S.A. 60-455. State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976). See also State v. Bullocks, 2 Kan. App. 2d 48, 574 P.2d 243, rev. denied 225 Kan. 846 (1978).
The appellant next contends that the trial court erred in not giving a limiting instruction concerning the use of Ms. Presley’s testimony about “dealing dope.” The appellant admits he did not request a limiting instruction, but contends the trial court was obligated to instruct by this court’s holding in State v. Roth, 200 Kan. 677, 438 P.2d 58 (1968). We agree.
The trial court has a duty to fairly present the law of the case on all salient features. When testimony of previous crimes is introduced under K.S.A. 60-455, its restriction to the purpose of that section becomes a salient feature in the case and failure to so instruct is error. State v. Roth, 200 Kan. at 680.
Generally, in every case where evidence of other crimes is admissible solely under the authority of 60-455 the trial court should give an instruction limiting the purpose for which evidence of the similar offense is to be considered. The failure to give a limiting instruction, regardless of request, is of such a prejudicial nature as to require the granting of a new trial. State v. Rambo, 208 Kan. 929, 930, 495 P.2d 101 (1972); State v. Roth, 200 Kan. at 680. See also State v. Bly, 215 Kan. 168,176, 523 P.2d 397 (1974).
The judgment of the lower court is reversed and the case is remanded for a new trial.
Fromme, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by defendants Holland Quarries, Inc., and Holland Construction Company, Inc., from a summary judgment entered in favor of plaintiff landowners in a zoning dispute.
Prior to August, 1973, the duly adopted Olathe Township Zoning Regulations, applicable to all territory in Olathe Township, Johnson County, Kansas, authorized “special permits for a specific purpose,” but specifically prohibited the use of any premises as a rock quarry. On August 29, 1973, the Olathe Township Zoning Board met in regular session and adopted a resolution recommending amendment to the zoning regulations which would authorize “special permits for specific purposes,” “notwithstanding any provisions in these regulations to the contrary.”
Upon receipt of the recommendation the Johnson County Board of County Commissioners (Commission) placed the matter on its October 1, 1973, agenda and published notice of same. At the October 1 meeting a number of the Olathe Township landowners appeared and objected to the proposed amendment. The Commission took the matter under advisement and requested further consideration of the matter by the Olathe Township Zoning Board in light of the objections. The matter was placed on the Zoning Board’s agenda for October 15, 1973, but apparently no discussion of the subject took place. The proposed amendment lay dormant for almost a year until September 23,1974, when the Zoning Board unanimously voted to “reapprove” its recommendation upon a letter from the Ott Estate requesting action.
On October 2, 1974, the recommendation was forwarded to the Commission by the Zoning Board. The Commission placed the matter on its agenda of November 13,1974, and published notice thereof. During the meeting the Commission adopted a resolution approving the amendment in its unaltered form.
Meanwhile, on November 1, 1974, the Ott Estate, an Olathe Township landowner, filed an application with the Zoning Board for a special permit for a quarrying operation. The permit application was placed on the Zoning Board’s agenda for November 18, 1974, and notice was published. Over the objections of various landowners, the Zoning Board recommended approval of the application at its November 18 meeting. On December 17, 1974, the appellants herein, Holland Quarries, Inc., and Holland Construction Company, Inc., purchased the Ott real estate. On December 19, 1974, the Commission granted a twenty-year special permit for quarrying, after notice and public hearing.
The plaintiff landowners then filed this action to:
“(a) enjoin the defendants from using land for Rock Quarry purposes; (b) declare the enactment of amendments to the Olathe Township Zoning Board void; (c) declare the issuance of a Special Permit for Specific Purposes of Rock Quarry use to be void; (d) declare that the actions of the Olathe Township Zoning Board and the Board of County Commissioners in approving a Special Permit for Specific Purposes was unreasonable.”
The plaintiffs own land situated within 1,000 feet of the special permit property.
The trial court ultimately entered summary judgment in favor of plaintiffs on the heels of a denial of summary judgment to defendants. A plenitude of issues was raised in the two motions and their unabridged inclusion herein would serve only to confuse.
The big issue in this appeal is whether legally sufficient notice was given prior to the amendment of the zoning regulations. The parties and the trial court agree that the relevant statute is K.S.A. 19-2907, which reads as follows:
“The zoning board shall first recommend to the county commissioners the boundaries of districts and appropriate regulations to be enforced thereon. Such board shall make a tentative report and hold public hearings thereon at such times and places in the township and upon such notices as the said county commissioners shall require before submitting their final report which notice shall be published once each week for three (3) consecutive weeks in a county paper of general circulation in the township. The county commissioners shall not determine the final boundaries of any district nor impose any regulation until after the final report of the zoning board is filed with them. After such final report is submitted to the county commissioners and after final adoption of regulations by the county commissioners, they may from time to time thereafter amend, supplement or change the boundaries or regulations contained in such final report: Provided, Such proposed changes shall first be submitted to the zoning board for recommendation and report: And provided further, That not less than three (3) weeks’ notice of any such proposed change shall first be published in a newspaper of general circulation in such township and a hearing granted to any person interested at a time and place specified in such notice and in addition thereto written notice shall be given by mail to all owners of lands located within one thousand (1,000) feet of the area proposed to be changed with the opportunity granted for interested parties to be heard: . . . .” (Emphasis added.)
The parties do not agree as to the legal effect of the statute. It is not controverted that the first part of the statute, before the emphasized portion, relates wholly to the initial adoption of zoning of a township — that is, going from no zoning to zoning. That step had already been taken prior to the actions involved herein and is not involved in this case.
The following chart assists in raising the issue into relief: 1973
August 29 Zoning Board, sua sponte, adopts the resolution to recommend the amendment. No notice of any type was given to the public on the proposed amendment.
September Board of County Commissioners place amendment on October 1 agenda and publish notice in excess of 21 days before the hearing.
October 1 Regular meeting had by Commission — matter “taken under advisement” and Zoning Board requested to give further consideration to the matter.
October 15 Matter on Zoning Board agenda. No action taken or notice given.
1974 September 23 Zoning Board votes to reapprove earlier recommendation of amendment. No notice given of this meeting.
November 13 Commission hearing on amendment, where it is approved. Notice published 18 days prior to the hearing.
The trial court recited the above sequence of events and determined:
“There is no way this Court can be convinced that this constituted adequate notice to affected landowners and due process has not been followed. To adopt defendants’ contention that only one public hearing is necessary could lead to disastrous results. Some unscrupulous body (not this case) could publish once, have one public hearing, stall the action until some undisclosed time and without further notice, go in a year later and obtain rights they could not acquire at the initial representative hearing. The Court has carefully reviewed Houston v. Board of County Commissioners, 218 Kan. 323, K.S.A. 12-701, et seq., and all the other authorities cited and this Court cannot recognize that its concept is in conflict with those cited.
“K.S.A. 12-701, et seq., does not require public hearings before the Board of City Commissioners, but it clearly requires public hearings before the local Zoning Board.
“The matter in this case went before the local Zoning Board under questionable procedures and was forwarded to the Board of County Commissioners on October 1, 1973, which Board clearly did hold a public hearing, pursuant to K.S.A. 19-2907, and at that point the County Commissioners referred the matter back to the local Board for further consideration.
“There has been no proper public hearing before the local Township Zoning Board which is required.
“Here the question is, were proper notices given to reconsider one year later, and was proper activity undertaken by the local Township Board in reconsidering without public hearing, when they, without a public hearing, simply notified the County Commissioners that they reaffirmed their former position. With the passage of over a year between the resubmission to the local Board by the County Commissioners, and the purported hearing by the local Board, was reconsideration given since there was no opportunity given to the public to present views and changes of circumstances. The Court thinks not and sustained plaintiffs’ motion for summary judgment versus defendants.”
The position of defendants is basically as follows:
1. K.S.A. 19-2907 requires one public hearing with notice by publication at least 21 days in advance thereof.
2. The Commission published notice in excess of 21 days prior to the first meeting October 1, 1973, and the publication notice required by K.S.A. 19-2907 was thereby complied with.
3. No republication of notice by the Commission was legally required, despite the long delay in acting.
4. K.S.A. 19-2907 does not require a public hearing before the Zoning Board on the amendment herein.
5. The subsequent issuance of the special permit after proper hearings before both boards cured any notice defects in the zoning amendments.
6. The notice herein once (and that before the Commission) was standard operating procedure for Johnson County and therefore correct.
The plaintiff surrounding landowners basically agree with the trial court and contend:
1. A second full 21-day publication notice was necessary prior to the Commission’s November, 1974, meeting.
2. The Zoning Board should have had a public hearing with full notice prior to “reapproving” its recommendation on September 23, 1974.
K.S.A. 19-2907 requires that a properly noticed public hearing be held. The statute does not specify which board shall conduct the hearing.
Where a statute is susceptible to more than one construction, it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute. State v. V.F.W. Post No. 3722, 215 Kan. 693, 697, 527 P.2d 1020 (1974).
The comparable statute for certain county zoning, K.S.A. 19-2931, clearly requires the public hearing to be before the planning commission after notice. Likewise, K.S.A. 19-2920 requires county planning boards to conduct public hearings with notice prior to amendments in zoning regulations. K.S.A. 12-708 requires city planning commissions to hold public hearings with notice on zoning amendments.
The logic of requiring the hearing to be before the zoning board is compelling. The zoning board’s authority is advisory only, and is limited to a study of the facts and submission of its recommendations to the governing body. See Burke & McCaffrey, Inc. v. City of Merriam, 198 Kan. 325, 327, 424 P.2d 483 (1967). Without a public hearing prior to making its recommendations the fact-gathering agency must act in the dark or try to anticipate on its own all the ramifications of the proposed change. The public would have no input into the recommendation and report. In such circumstances, frequently only those persons instigating the change would know the change was being considered and the zoning board, in essence, would hear only from the proponents. Further, those members of the public who are against the zoning board’s recommendations are, at their first opportunity to be heard, faced with the uphill fight of opposing what the zoning board has already recommended.
The typical county commission meeting, with its full and varied agenda, is generally a poor place for the battle of opposing forces to commence.
Likewise, it would be an illogical result if changes in countywide zoning would have public hearings before planning boards, but changes in individual township zoning would only have public hearings before the full county commission. Theoretically, at least, the county commission would be less familiar with individual township conditions than with matters affecting the entire county.
There is no logical reason to conclude that the legislature intended to have public hearings on township zoning amendments conducted differently than those involving city or county zoning amendments.
We must therefore conclude:
1. K.S.A. 19-2907 required the Olathe Township Zoning Board to make a recommendation and report to the Board of County Commissioners on the proposed amendment to the zoning regulations. A prerequisite to the making of such recommendation was that the township zoning board should conduct a public hearing after giving the statutory notice.
2. The Township Zoning Board’s recommendation, either for or against adoption of the proposed amendment, was a prerequisite to the Commission’s right to approve the amendment. See Houston v. Board of City Commissioners, 218 Kan. 323, 543 P.2d 1010 (1975).
3. The failure of the Township Zoning Board to conduct a duly noticed public hearing prior to making its recommendation deprived the Commission of any right to approve the proposed amendment to the township zoning regulations.
4. Neither the subsequent public hearing by the Township Zoning Board on the application for a special permit, nor the alleged custom of the two boards to proceed in this manner, remedied the fatal defect in the proceedings to amend the zoning regulations.
Inasmuch as no hearing was conducted by the Zoning Board it is unnecessary to determine the issue raised concerning the effect of the delay between the two actions of the Zoning Board.
We conclude the district court correctly held the amendment of the township zoning regulations to be invalid.
Before proceeding to the next point, it is necessary to identify the parties to this appeal. The plaintiffs-appellees are landowners in Olathe Township who oppose the change in the zoning regulations. The defendant Commission filed a notice of appeal, but has not filed briefs or otherwise appeared. The defendant Township Zoning Board is not a party to the appeal. The defendants Holland Quarries, Inc., and the Holland Construction Company, Inc., are the appellants herein.
Both before the trial court and this court the Holland defendants have sought a determination that the Olathe Township zoning regulations prohibiting rock quarrying were unconstitu tional. The issue does not arise in the pleadings and as no cross-claim between defendants was filed it is obviously not an issue between the plaintiffs and defendants. Even had a cross-claim been filed, a serious question would have been raised as to whether such a procedure was proper or whether the defendants Holland would have to raise the issue by a separate action against the Commission. The trial court correctly held that the issue was not before it. Likewise, it is not properly before this court.
The final issues before this court are whether subsequent actions by defendants constitute an acquiescence in the judgment and whether the appeal is moot. These are closely related questions and will be dealt with together.
After the township zoning regulations amendment was approved, the Ott Estate filed for and received a special permit for rock quarrying operations on the 160-acre Ott-Holland tract. The trial court specifically held that this permit, granted on December 19, 1974, was lawfully issued, and this determination is not on appeal. In 1978 the Holland Real Estate Development Corporation made application for a second special permit for a rock quarrying operation on a part of the same land. The second permit application received a favorable 2 to 1 vote by the Commission, but the county counselor held that a unanimous vote was required by virtue of the filing of written protests by more than 20% of the frontage owners (see K.S.A. 19-2907). The Holland corporation involved therein has appealed the unanimity question to the district court. The outcome of that litigation is not known to this court. The Holland corporation seeking the second permit is not one of the two Holland corporations that are parties to this case.
The plaintiffs herein contend the act of Holland Real Estate Development Corporation in seeking the second special permit is an acquiescence in the judgment and renders this appeal moot. The Holland defendants point out that this appeal concerns the validity of the ordinance amending the zoning regulations; whereas, the pending district court action involves a special permit application. Further, they call attention to the fact the second permit applicant, Holland Real Estate Development Corporation, is not a party to the case herein. The legal basis for the issuance of both permits is the ordinance amending the township zoning regulations, which has been invalidated herein.
The following are the general rules applicable to mootness and acquiescence. An issue becomes moot when a judgment of the appellate court would be of no consequence; an appeal will be dismissed where the issues raised have become moot. Six Cities v. State Corporation Commission, 213 Kan. 413, 516 P.2d 596 (1973). An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned. Moyer v. Board of County Commissioners, 197 Kan. 23, Syl. ¶ 1, 415 P.2d 261 (1966). Anything which savors of acquiescence in a judgment cuts off the right of appellate review. Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 652, 567 P.2d 856 (1977). In Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl. ¶¶ 6, 7, 597 P.2d 1080 (1979), we said:
“The general rule, subject to certain exceptions, is that a party to litigation who has acquiesced in the judgment of the trial court either by assuming the burden of such judgment or by accepting the benefits thereof will be deemed to have acquiesced in such judgment and may not thereafter adopt an inconsistent position and appeal from such judgment.”
“Where a judgment or decree involves distinct and severable matters, demands or issues, an acceptance of the burdens or benefits of one or more parts thereof will not prevent an appeal as to the remaining contested matters, demands or issues.”
We must conclude that the seeking of a permit after the judgment herein, involving different issues and different parties, neither renders the appeal moot nor constitutes an acquiescence in the judgment by appellants.
All points raised have been considered, whether or not specifically set forth in this opinion, and no error is shown.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by Marvin C. White from an order of the district court dismissing his case on the grounds the petition failed to state a claim upon which relief could be granted.
The facts are simple. Appellant’s automobile and an automobile owned and driven by Joe Ackah-Yensu collided on January 7, 1977. Appellee, Goodville Mutual Casualty Company, was the insurance carrier for Mr. Ackah-Yensu, and a policy of liability insurance was effective on the collision date.
Appellant filed suit on July 11, 1977, in the district court of Sedgwick County, Kansas, seeking to recover $1,239.00 in damages from Joe Ackah-Yensu. Mr. Ackah-Yensu had moved in the meantime and appellant was unable to obtain personal service on him or ascertain his whereabouts. Appellant then instituted this action on August 26, 1977, against the insurance carrier for recovery of property damages, attorney fees and costs.
Appellee filed a motion to dismiss this latter action upon the grounds it failed to state a claim upon which relief could be granted. The district court of Sedgwick County, Kansas, sustained the motion concluding that Kansas law did not permit an injured party to maintain a direct action against the insurer of a negligent motorist. Appellant appeals from this dismissal requesting this court to adopt a direct action policy and readily concedes that no such action has heretofore been recognized in Kansas.
The sole issue on appeal is whether an injured party may maintain an action directly against the insurer of an alleged negligent motorist.
The prevailing general rule is that, unless provided by statute or the insurance contract itself, an automobile insurance company may not be made an original party to a lawsuit against its insured. 7 Am. Jur. 2d, Automobile Insurance § 210.
The long-standing rule in Kansas is that the mere mention of defendant’s insurance in an automobile collision case is reversible error. Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973); Bott v. Wendler, 203 Kan. 212, 453 P.2d 100 (1969). Kansas, by statute, does allow for disclosure of insurance during discovery; however, the statute specifically provides that even though discoverable the information so obtained is not thereby made admissible in evidence. K.S.A. 60-226(b)(2).
The question of a direct action against an insurer either by way of joinder with the insured as a defendant or by action against the insurer alone has been the subject of much writing and speculation. See generally, Porter, Compulsory Motor Vehicle Liability Insurance: Joinder of Insurers as Defendants in Actions Arising Out of Automobile Accidents, 14 Wake Forest L. Rev. 200 (1978); Note, Direct Actions Against Insurance Companies: Should They Join the Party?, 59 Cal. L. Rev. 525 (1971); Rudser, Direct Actions Against Insurance Companies, 45 N.D. L. Rev. 483 (1969); Schwab, The Louisiana Direct Action Statute, 22 La. L. Rev. 243 (1961); Degnan, Semi-Direct Action Against Liability Insurers, Current Problems, 13 Vand. L. Rev. 871 (1960); Note, Permissive Joinder as a Substitute for Excluding Evidence that Defendant is Insured, 59 Yale L. J. 1160 (1950); Appleman, Joinder of Policy holder and Insurer as Parties Defendant, 22 Marq. L. Rev. 75 (1938).
Appellant’s principal argument is that the Kansas Automobile Injury Reparations Act, K.S.A. 1978 Supp. 40-3101 etseq., should be interpreted to permit the right of direct action. Liability insurance coverage is now mandatory under this Act as a condition precedent to the registration and operation of a motor vehicle in Kansas. This requirement is the basis of appellant’s contention that a direct action against the insurer is permissible. Appellant attempts to support his argument by previous decisions of this court authorizing a direct action against insurers of public motor carriers under K.S.A. 1978 Supp. 66-1, 128. Sterling v. Hartenstein, 185 Kan. 50, 341 P.2d 90 (1959); Fitzgerald v. Thompson, 167 Kan. 87, 204 P.2d 756 (1949); Twichell v. Hetzel, 145 Kan. 139, 64 P.2d 557 (1937); Dunn v. Jones, 143 Kan. 218, 53 P.2d 918 (1936).
This argument requires a comparison and analysis of K.S.A. 1978 Supp. 40-3107(h) and K.S.A. 1978 Supp. 66-1,128 including the judicial construction of the latter. The pertinent parts of the statutes are set out below:
K.S.A 1978 Supp. 40-3107:
“Every policy of motor vehicle liability insurance issued by an insurer to an owner residing in this state shall:
“(b) insure the person named therein and any other person, as insured, using any such vehicle with the expressed or implied consent of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of any such vehicle within the United States of America or the Dominion of Canada, subject to the limits stated in such policy;” (Emphasis supplied.)
K.S.A. 1978 Supp. 66-1,128:
“(a) Except as provided in subsection (b), no certificate, permit, or license shall be issued by the state corporation commission to any ‘public motor carrier of property,’ ‘public motor carrier of passengers,’ ‘contract motor carrier of property or passengers,’ or ‘private motor carrier of property,’ until and after such applicant shall have filed with, and the same has been approved by the state corporation commission, a liability insurance policy, in such reasonable sum as the commission may deem necessary to adequately protect the interest of the public with due regard to the number of persons and amount of property involved, but in no event shall such sum be less than five thousand dollars ($5,000) for loss to property of others in any one accident, twenty-five thousand dollars ($25,000) for personal injury or death to any one person in any one accident, and fifty thousand dollars ($50,000) for injury or death to two or more persons in any one accident, which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such carrier.” (Emphasis supplied.)
K.S.A. 1978 Supp. 40-3107(b) mandates coverage “against loss from the liability imposed by law,” whereas K.S.A. 1978 Supp. 66-1,128 mandates coverage which shall bind the carrier to “pay compensation for injuries . . . and . . . damage . . . resulting from the negligent operation of such carrier.”
Our decisions which allow a direct action against the insurance carrier under 66-1,128 were based upon the intent of the legislature as determined from the statute. As we have no statute specifically allowing such direct actions, any such determination under 40-3107 must also be found to have been the intent of the legislature.
While liability insurance policies and indemnity insurance policies are both referred to as liability policies, the terms liability and indemnity are often confused and at times ignored. The distinction between the terms, however, is necessary in reviewing our prior decisions and in determining the legislative intent behind the statutes. Generally, where the policy is to indemnify the insured against actual loss, no liability of the insurer arises to anyone until a judgment has been obtained and the insured has paid it and thereby sustained a loss although by practice, decision, statute or the policy itself the actual payment by the insured is no longer required to establish an obligation on the insurer. Prior to a final judgment there is no duty on the part of the insurer to make any payment and it may not be sued alone or as a codefendant. If the policy is considered to be a contract of liability insurance then primary liability is upon the insurer and therefore an injured party may sue the insurance company alone or join it in a suit against the insured. 12 Couch on Insurance 2d § 45:766.
The allowance of a direct action against an insurer under 66-1,128 was first approved in Dunn v. Jones, 143 Kan. 218:
“The legislature might have provided that no liability should attach to the insurer until judgment had been rendered against the motor carrier for damages resulting from his negligence. It did not do so. In the Blanton case the terms of a policy were considered, and it was held the policy was a liability policy. In this instance, the terms of the statute are considered. It required a liability policy, and the following, from the opinion in the Blanton case, is pertinent:
‘These provisions show that the obligations of the contract rested upon the insurer from the time the accident occurred down until the liability resulting from them was settled and discharged.’ . . .
“Obligation to pay compensation accruing at the time of accident resulting in injury is enforceable by the injured person by action in the usual way.” p. 223.
However, the policy was found to be one of liability only when read in light of the statute. The label attached to the policy is irrelevant; it is the nature of the policy cast in the light of the statute under which it was issued that controls its classification. Burks v. Aldridge, 154 Kan. 731, 735, 121 P.2d 276 (1942).
In Sterling v. Hartenstein, 185 Kan. 50, the court considered the holding in Dunn v. Jones and, in doing so, stated:
“The statute there construed provided not merely for a liability insurance policy, prior to issuance of a certificate or license, but specified with some particularity the kind of liability insurance to be provided. The statute required insurance which ‘shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such [motor] carrier.’ Construing that language in the light of other provisions, and of the purpose and intent of the whole Motor Carrier Act relating to the use of the public highways for business and commercial purposes, it was held that the legislature intended to require a policy which would provide direct liability to injured persons without regard to judgment against the insured motor carrier. It was further held that the terms of the statute must be read into the policy. In other words, the insurance company must be held to have accepted the terms of the statute under which it furnished the policy to the motor carrier.” 185 Kan. at 55.
Policies issued pursuant to K.S.A. 1978 Supp. 40-3101 et seq., are required to insure the person named therein against loss from the “liability imposed by law.” This phrase as used in automobile liability policies is ordinarily one of indemnification and construed as meaning liability imposed in a definite sum by a final judgment against the insured. See 25 Words and Phrases 92.
K.S.A. 1978 Supp. 40-3107 specifically provides that the provisions of the statute are read into and are a part of any policy issued thereunder. In construing ordinances requiring liability insurance in various situations, we have consistently held that such a requirement does not authorize a direct action against the insurance carrier. Bayless v. Bayless, 193 Kan. 79, 392 P.2d 132 (1964); Lang v. Underwriters at Lloyd’s, 157 Kan. 314, 139 P.2d 414 (1943); Burks v. Aldridge, 154 Kan. 731. See also Carter v. Insurance Co., 76 Kan. 275, 91 Pac. 178 (1907).
After a careful comparison and analysis of the language used by the legislature in 66-1,128 and 40-3107, we conclude that the legislature did not intend by its enactment of K.S.A. 1978 Supp. 40-3101 et seq., to authorize a direct action against the insurance carrier of an alleged negligent motorist. If it had so intended, it could have provided for the same in simple language or could have specified a direct liability as in 66-1,128.
Appellant next contends that this court should adopt a policy allowing direct actions against the insurance carrier on the theory that the injured party is a third-party beneficiary of the insurance contract and on public policy considerations. Appellant relies principally, if not solely, on Bussey v. Shingleton, 211 So. 2d 593 (Fla. Dist. Ct. App. 1968), aff’d Shingleton v. Bussey, 223 So. 2d 713 (Fla. 1969). It appears that Florida is the only state which has permitted a direct action against the insurer absent specific statutory authority or compulsory insurance laws construed to authorize the same. Appellant asks this court to follow the “enlightened” view adopted in Florida. Even if we were to adopt the Florida rule, which we decline to do, it would be of no consolation to appellant. Florida has consistently held that the insured is an indispensable party and only allows joinder of the insurer as a codefendant. The most that can be said of Bussey is that it allows the insurer to be joined with the insured as a co-party and therefore it is not authority for the position argued by appellant. We have considered carefully the arguments of appellant and the Kansas Trial Lawyers Association in its amicus brief and do not find their arguments persuasive.
If a direct action in an automobile collision case is to be allowed against an insurance carrier, either as the sole defendant or as a codefendant with the insured, the legislature must establish such right.
The judgment is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the low bidder on a construction contract to recover damages from the city of Ottawa because the city rejected the plaintiff’s low bid. The plaintiff is Case-Bros. Company, Inc., a contractor of Topeka, Kansas.
The facts in the case are not in dispute and essentially are as follows: In the early summer of 1976 the city of Ottawa determined that it should combine its police department with its fire department into a Department of Public Safety. In order to provide office space and other facilities, the fire station was to be remodeled. For this purpose the city retained Skidmore and Devore, Architects. These architects compiled specifications for fire station remodeling and labeled it Project 310. These specifications were published in booklet form, together with an invitation to bid, instructions to bidders, proposal form, and detailed construction specifications. Invitations to bid were initially issued on June 22, 1976, and sealed bids were received on July 6, 1976, in the office of the city clerk. On July 7, 1976, these bids were reviewed and determined to all be higher than an estimate formulated by the architects. The plaintiff did participate by submitting a bid, but it was not the low bidder.
On July 21,1976, a second invitation to bid was advertised and on August 4, 1976, two bids were received. The bid submitted by plaintiff was the low bid by the sum of $2,206. All bids again exceeded the architect’s estimate. The governing body of the city of Ottawa requested and received a written resume of the work experience of the plaintiff. On August 4, 1976, the governing body of the city rejected the low bid of plaintiff and entered into contract with the next-to-low bidder. The bid security of all bidders was returned by the architects on August 5, 1976. The plaintiff was not awarded the contract for the following reasons: (1) The resumes of work experience of plaintiff did not reveal any work undertaken by plaintiff on a public building or project; (2) The plaintiff did not offer any experience of any commercial remodeling; and (3) The date for completion was more than thirty (30) days longer than the bid of the successful bidder.
The determination of this controversy depends upon a construction of the language used in the invitation to bid and instructions to the bidders which were issued by the city manager of Ottawa. The invitation to bid required interested bidders to deliver sealed proposals to the office of the city clerk by July 6, 1976. Drawings and specifications for the work to be performed were available for examination at the architects’ office. The last paragraph in the invitation to bid stated as follows:
“The City of Ottawa reserves the right to waive irregularities and to reject any and all proposals.” (Emphasis supplied.)
The pertinent portions of the instructions to bidders necessary to resolve this controversy are as follows:
“BID SECURITY. Bid Security shall be made payable to the City of Ottawa, Ottawa, Kansas, in the following amount:
“COMBINATION CONSTRUCTION.....$1,000.00 Security shall be either certified check or bid bond issued by surety licensed to conduct business in the State of Kansas. The successful bidder’s security will be retained until he has signed the Contract and furnished the required payment and performance bonds. The Owner reserves the right to retain the security of the next two lowest bidders until the low bidder enters into Contract or until 30 days after bid opening, whichever is the shorter. All other bid security will be returned as soon as practicable. If any bidder refused to enter into a Contract, the Owner will retain his bid security as liquidated damages, but not as a penalty.
“QUALIFICATIONS OF BIDDERS. If required, a bidder shall submit to the Architects a properly executed Contractor’s Qualification Statement, AIA Document A305.
“REJECTION OF BIDS.' The bidder acknowledges the right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to submit the date required by the bidding documents, or if the bid is in any way incomplete or irregular.” (Emphasis supplied.)
It is undisputed that the plaintiff’s bid was in all respects complete and regular as to form and that all requirements to be accepted as a “bona fide bidder” were met by the plaintiff.
The trial court held at the pretrial conference that, under the terms of the invitation to bid and bidding instructions quoted above, the plaintiff, as the lowest reasonable bidder, was entitled to have its bid accepted and that the city was liable for breach of contract. The case was then tried to the court on the issue of damages only. The district court awarded damages to the plaintiff in the amount of $3,000. The city has appealed.
Throughout the proceedings in the district court and on the appeal, the contentions of the parties have been essentially as follows: The plaintiff contended that, since it was the low bidder, the city of Ottawa must accept the bid and enter into a contract. Plaintiff relies upon the language in that paragraph of the. instructions to bidders entitled “Bid Security” and argues that the use of the term “low bidder” is synonymous with the term “successful bidder” used in that same paragraph. The city of Ottawa contended that both the invitation to bid and the instructions to bidders provide the city reserves the right to reject any or all bids or proposals. The city further maintained that, if it had not so retained such a right to reject any or all bids, it would have been obligated to enter into a contract with the low bidder when the invitation for bids was initially advertised on June 22, 1976, and the second advertisement of invitation to bid would not have been possible. The city further contended that it is a legally permissible and customary practice in this state for municipalities to reserve the right to reject any and all bids and that such provisions must be given effect.
The primary point raised on the appeal by the city is that the trial court erred in holding that the city did not unequivocally reserve the right to reject any or all bids submitted. Although the city raises other points, a determination of that primary issue will determine the appeal, since we have concluded that the trial court was in error and that the defendant city was entitled to judgment as a matter of law.
At the outset, it must be emphasized that there exists no statutory requirement for any bidding process to be used by a city of the second class, operating under the city management form of government, in entering into a public improvement contract. Under its powers, the city governing body has the discretionary right to enter into a construction contract with whomever it determines to be the most qualified for the work. The issue presented here for determination is one of law and, simply stated, is whether under the invitation to bid, the city had the right to reject the bid of the plaintiff, Case-Bros., even though plaintiff was the low bidder and a responsible contractor. We have concluded that the city did have such a right and that the plaintiff has no cause of action against the city under the circumstances of this case.
In Yarnold v. City of Lawrence, 15 Kan. *126 (1875), this court held that, in the absence of an express direction of law to let contracts to the lowest bidder, no letting or competition is necessary. The same issue was before the court again in Bunker v. Hutchinson, 74 Kan. 651, 87 Pac. 884 (1906). In the opinion at page 658, the court cites volume 1 of Spelling on Extra Ordinary Relief, section 718, which states:
“ ‘Where no conditions or restrictions are imposed upon municipal officers in the matter of letting contracts they are not obliged to let the work to the lowest bidder, and cannot be enjoined for a refusal to do so unless guilty of fraud. They may exercise an unlimited discretion so long as they are not guilty of gross abuse of discretion and do not pervert their powers to such an extent as to amount to a fraudulent misappropriation of the public funds.’ (See, also, Schefbauer v. Kearney, 57 N.J. Law, 588, 31 Atl. 454; Elliot v. Minneapolis City, 59 Minn. 111, 60 N.W. 1081; Riehl v. City of San Jose, 101 Cal. 442, 35 Pac. 1013; Kingsley v. City of Brooklyn, 5 Abb. New Cas. [N.Y.] 1; 20 A. & E. Encycl. of L. 1165).”
Where a public agency’s invitation to bid specifically gives to the public authority the right to reject any or all bids, the cases in other jurisdictions generally agree that such a provision means exactly what it says and that, where a low bid is rejected, the low bidder is thereby precluded from any right to claim a binding contract. There is an excellent annotation on this subject in 31 A.L.R.2d 469. In the annotation many cases are cited supporting this principle of law. See also 64 Am. Jur. 2d, Public Works and Contracts §§75 and 76.
With these general principles in mind, we turn to the specific provisions of the invitation to bid and the instructions to bidders to determine if there are any provisions contained therein to justify a departure from the general rule. We have concluded that there are not. In our judgment, the invitation to bid is clear and unambiguous. The city of Ottawa without limitation reserved the right to reject “any and all bids” in the invitation to bidders and again in the instructions to bidders. The district court’s reliance on the “BID SECURITY” provisions quoted above was not justified. Those provisions did not specify that the low bidder’s security would be retained but rather that the successful bidder’s security would be retained. The district court ignored the fact that it was optional for the city to retain the bid security of the next two lowest bidders. The instructions to bidders do not state that the successful bidder has to be the lowest bidder. We have concluded that the district court erroneously placed a limitation upon the language of the “REJECTION OF BIDS” provision that does not exist. The statement combines two separate thoughts. First, “the bidder acknowledges the right of the owner to reject any or all bids,” and second, “the bidder acknowledges the right of the owner ... to waive any informality or irregularity in any bid received.” The balance of the language of the instruction does not modify these two thoughts, but simply explains and gives examples of the city’s retained rights.
We have thus concluded that the general rule is applicable in this case and that the trial court erred in holding that the city of Ottawa did not unequivocally have the right to reject any and all bids within the discretion of its governing officials. There is no contention in the case that the city officials were guilty of fraud as required in Bunker v. Hutchinson.
Here the action was clearly one in contract. Under the invitation to bidders the city had the right to reject the bid of the plaintiff, Case-Bros., even though that was the lowest bid. Hence, the city was entitled to judgment as a matter of law.
Judgment of the district court is reversed and judgment is entered in favor of the defendant.
Fromme, J., not participating.
Miller, J., concurs in the result.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by defendant Western Fire Insurance Company and intervenor Manley Leasing Company, Inc., from judgments entered in favor of plaintiff Hartford Fire Insurance Company (1) on Hartford’s petition against Western in the amount of $18,420.46, and (2) on the claim against Hartford filed by Manley.
The facts are complex and by virtue of the issues raised on appeal they must be set forth in considerable detail.
Francis B. Freeman, d/b/a Freeman Construction Company, operated out of Archie, Missouri. Freeman, for at least two years prior to December, 1971, maintained insurance on his equipment with Western in an inland marine policy, with the current policy being due to expire on December 17, 1971. The policy specifically insured, among other items of equipment, a D-8 Caterpillar tractor (bulldozer) for $20,000. The bulldozer was owned by Manley and leased to Freeman. As a part of the lease agreement Freeman was required to keep the bulldozer insured. The Western policy contained various loss payable clauses, including one in favor of Manley.
In 1970-71, Freeman was experiencing a serious financial bind. A principal creditor was the First National Bank of Butler, Missouri. The bank became concerned with Freeman’s financial health and entered into an agreement with Freeman whereby Steven Buerge, son of the bank’s president and an employee of the bank, took over the management of Freeman’s business affairs. The record is unclear as to when this changeover occurred, but it was no later than the early months of 1971. During all relevant times herein Buerge was then serving as business manager and running the business affairs of Freeman from Buerge’s office in Butler. Freeman continued to maintain the office in Archie.
In the fall of 1971 Buerge decided it might be desirable to place Freeman’s insurance with another company. Conveniently, there was a Hartford agent, G. J. Six, in an office adjacent to Buerge. The two men discussed the matter and Buerge turned over the Freeman insurance file to Six in order that Six could review same and determine what Hartford could offer as replacement insur anee for the current Western policy upon its expiration. Almost daily discussions occurred on the subject. Buerge agreed to Hartford’s becoming the insurer for Freeman.
In early December, 1971, a Western agent, Jim Schneider, of Rich Hill, Missouri, visited Buerge in Buerge’s office to discuss renewal of the policy (he had the Freeman account). He was told by Buerge that the policy was not going to be renewed and that he was placing the insurance with another company. A heated conversation followed, with Schneider denying Buerge’s authority to transfer the insurance. The discussion terminated with Schneider stating he was going to contact Freeman.
Freeman, who was subsequently contacted by Schneider, told Schneider he and Buerge had discussed changing insurance companies but that no decision had been reached. In a later conversation between Freeman and Buerge the transfer to Hartford was agreed upon. Schneider meanwhile made no further contacts with either Buerge or Freeman, but directed the Western home office to renew the policy in anticipation of a renewal. In accordance with the instructions from its agent, Western issued a renewal policy, with Schneider forwarding it to Freeman at his office in Archie, and a copy of same was sent to Manley. The agent, Schneider, started billing Freeman, said bills being directed to Buerge’s office in Butler. The Hartford policy was issued as a blanket policy effective December 17,1971; it insured the D-8 bulldozer under the equipment provision totaling $234,000. The policy did not have a Manley loss payable provision.
On January 22, 1972, the D-8 bulldozer was damaged by fire in Manhattan, Kansas. Freeman promptly filed a claim with Hartford for the loss. Sometime between January 22, 1972, and February 2, 1972, Schneider, concerned that no premium had been paid on the Western policy, visited the Freeman office in Archie to demand payment of the premium or return of the policy. He was told by Freeman that the Western policy had not been renewed, that Hartford had the insurance, and that the Western policy should be canceled. The policy was returned to Schneider. After the policy had been returned to Schneider, but during the same conversation, Schneider was advised for the first time of the damage to the bulldozer and that a claim had been filed with Hartford. No premium was ever paid to Western for the 1971-72 renewal and the policy was canceled “flat” back to December 17, 1971. No notice of such cancellation was ever sent to Manley, despite a requirement in the policy that such notice be given.
Hartford investigated the loss and contacted Western. Hartford took the position that Western had the primary coverage and that the Hartford policy was excess coverage only. Western denied the existence of a policy, but sent an adjuster to investigate. The bulldozer was removed from the loss site in Manhattan to Martin Tractor Company in Topeka where it was appraised. The Western and Hartford adjusters had some conversations in February relative to the situation. On February 22, 1972, the Western adjuster advised the Hartford adjuster that the Western policy had some loss payable clauses, but Hartford made no investigation relative to ascertaining the real owner. Freeman signed a sworn proof of loss, stating he was the owner. A meeting of the two adjusters and Freeman occurred (the exact date is impossible to determine, but it was prior to any payments by Hartford). At that meeting Freeman stated the Western policy had not been renewed, that Hartford was the sole insurer, and that he was making no claim against Western. Western advised Hartford it was denying coverage on the ground that no policy was in effect.
On March 2, 1972, Hartford directed its claims officer to settle with Freeman, the following being a part of its inter-office memorandum:
“There is no doubt in my mind that the Western policy was in effect at the time of the loss, i.e., it had not been canceled at the time this loss occurred. Whether or not we can prevail upon Western Fire to assume their rightful liability for this damage is another matter. We cannot penalize our insured by refusing payment under our contract if he is unable to collect from Western Fire. We acknowledge that we have a valid contract and although it is on a blanket basis, I don’t think we should withhold our payment any longer pending clarification of the Western Fire policy. “Therefore, you are authorized to conclude this loss on the basis of the constructive total loss.”
In March, 1972, Hartford settled with Freeman by paying him $18,000 and allowing him to retain the salvage (value $2,000). In addition, Hartford paid the cost of transferring the bulldozer to Topeka and its appraisal at Martin Tractor Company (total cost $540.56).
In 1973 Manley learned of the loss of the bulldozer and of the Hartford policy. In November, 1973, the action herein was filed by Hartford against Western on Freeman’s subrogation to recoup the $18,540.56 it had paid in settlement, plus investigation expense. In January, 1974, Manley filed suit against Western to recover the value of the bulldozer. The two cases were consolidated. Subsequent thereto, Western paid Manley $7,500 in settlement of Manley’s claim against Western, but Manley specifically reserved the right to proceed against Hartford and others. Western then had subrogation rights from Manley for the $7,500 it had paid, and counterclaimed for same against Hartford. As intervenor in the Hartford-Western action, Manley made claim against Hartford for $12,500.
On trial of the case the court entered judgment in favor of Hartford against Western in the amount of $18,420.46 ($18,000 paid in settlement, plus $540.56 investigation expense, less earned premium on Western policy). Hartford was given judgment on the Manley claim against it and nothing was said about the Western counterclaim for $7,500. From the trial court’s findings and conclusions it is apparent the court was ruling in favor of Hartford and against Western. Nothing would be gained by remanding the case to the district court for an express ruling on the counterclaim. From the judgments, Manley and Western appeal.
Some of the foregoing statement of facts and certain other facts stated elsewhere in this opinion are in areas where the trial court made no findings of fact. These facts are not substantially in dispute and do not require a weighing of the evidence to determine; however, they are significant to this action. Further, the trial court made certain findings of fact which are not in harmony with the facts stated herein. We have carefully reviewed the record and hold those findings to be unsupported by substantial competent evidence. It would only serve to confuse an already complicated factual situation to specifically go through each of the trial court’s findings of fact and designate in this opinion the status of each such finding. It is sufficient to state that all findings of the trial court which are inconsistent with and contrary to the facts expressed herein are set aside for the above stated reason.
We will first deal with the propriety of the judgment entered in favor of Hartford against Western.
The first question is whether or not the Western renewal policy issued December 17,1971, was a valid policy which was in effect on January 22, 1972 (date of the bulldozer damage). Prior to December 17, 1971, Freeman, the named insured, had decided not to renew the policy and had made all necessary arrangements to purchase insurance with another company (Hartford). The Hartford agent handling the selling and issuance of the Hartford policy knew the Hartford policy was to replace the Western policy and was not supplemental thereto. Prior to the expiration of the Western policy the Western agent (Schneider) sought renewal of the policy and was told another company would be writing the insurance and the Western policy would not be renewed. The Western agent ordered renewal of the policy on the hope Freeman would alter his position and accept same. No premiums were paid to Western and the new Hartford policy went into effect on December 17, 1971, which was also the Western policy’s expiration date. The Western agent did not know the Hartford policy had been issued, but did know he had been told (1) that the policy would not be renewed, and, subsequently, (2) that the matter had not finally been decided. Under such circumstances the agent ordered the renewal in anticipation of successfully retaining the account, as the trial court found. The agent delivered the policy, expecting to receive either the return of the policy or premiums therefor. When neither was forthcoming, he personally went to the insured’s place of business and demanded premium or policy. He was told the renewal had never been agreed to, the policy should be canceled, and he was personally handed the policy. He was further advised that Hartford had the insurance, that the bulldozer had been damaged, and that a claim had been filed with Hartford. The insured, Freeman, steadfastly maintained this position throughout his claim negotiations with Hartford.
The trial court found:
“4. The receipt and retention by the applicant of a policy tendered or sent him by the insurer without objection to the policy is binding as an acceptance. Couch on Insurance 2d § 12:8.”
The elements of a contract of insurance are set forth in 44 C.J.S., Insurance § 227, pp. 941-43, as being:
“[A] subject matter, a risk or contingency insured against, and the duration thereof; a promise to pay or to indemnify and a promise to pay or indemnify in a fixed, determinable or ascertainable amount; a consideration for the promise, known as the premium, and the period of payment thereof; and an agreement, or meeting of the minds of the parties, and such agreement or meeting of the minds must be on all the foregoing essential elements. ” (Emphasis added.)
With respect to renewals of existing insurance policies, it is stated in § 283, pp. 1126-27:
“A binding contract of renewal must be clearly established, and must have all the essentials of a valid contract, as in the creation of the contract in the first instance .... Thus a renewal cannot be effected or consummated without the mutual assent of the parties and a meeting of the minds of the parties on all the essentials of the contract, and a new consideration. A mere custom of companies or their agents in certain localities to renew, without request, is not sufficient to establish a renewal, unless it is of such a nature as to be binding on insured as well as on insurer.” (Emphasis added.)
The general rules on acceptance of a policy are set forth in 1 Couch on Insurance 2d, §§ 12:8 et seq.: § 12:8. In general.
“The receipt and retention by the applicant of a policy tendered or sent to him by the insurer, without notice of objection to the policy, is binding as an ‘acceptance,’ especially where accompanied by payment of the initial premium subsequent to the delivery of the policy, provided there is no fraud, accident, or mistake. The obligee of a bank deposit guaranty bond sufficiently evidences an acceptance thereof by paying the premium thereon.
“Of course, a policy cannot be said to have been accepted where the insured had no knowledge of its existence. An acceptance, moreover, to be effective, must precede loss.”
§ 12:13. Communication of acceptance or rejection.
“Formal acceptance of a policy is not rendered necessary merely because the insurer furnished a form on which to notify it that the policy had been delivered. Communication of the acceptance is, however, essential to the completion of the contract, where the policy was received unsolicited by the insured named therein, since in such a case the submission of the policy to the insured is nothing more than a proposal emanating from the insurer. In some instances, moreover, in which a policy is sent on approval, a communication of the approval appears to be essential to the completion of the contract.
“As hereinbefore appears, the communication by the applicant of his rejection of a policy may be essential to avoid the effect of his retention of the policy as an acceptance.”
§ 12:15. Renewal policy.
“A mere mental resolution is not sufficient as an acceptance of a policy offered as a renewal contract; the acceptance must be made by some unequivocal word or conduct such as the communication of the acceptance to the insurer’s agent or the payment of the premium called for by the contract.
“Mere delay in rejecting a receipt for renewal of an accident policy does not amount to an acceptance which will continue the policy in force. However, it has been held that where the renewal receipt is unconditional, and was mailed pursuant to a long and well-established custom that protection should date from delivery of the receipt, acceptance is implied from retention by the insured of the receipt. So, the receipt and retention by insured of a renewal policy creates a binding contract.”
Missouri law is in accord with Kansas law that delivery of a renewal policy without request is merely an offer or proposal that must be accepted by the insured before a contract of insurance exists. Marker v. Preferred Fire Ins. Co., 211 Kan. 427, 437, 506 P.2d 1163 (1973); Eicks v. Fidelity & Casualty Co., 300 Mo. 279, 292, 253 S.W. 1029, 1033 (1923); see 1 Couch 2d, § 12:3.
In Eicks, 300 Mo. at 291-92, the Missouri Supreme Court held:
“Insurance is a matter of contract and is governed by the rules applicable to contracts. In the application of these rules it has been held in numerous cases upon accident insurance policies that the delivery of a renewal receipt by the insurer to the insured without a request by the insured, is an offer or proposal, which must be accepted by the insured before there can be a contract of insurance effected. [Citations omitted.] Clearly, the renewal of such a policy cannot be imposed upon the insured against his will. His assent is necessary to the proposal, to make it binding, but his assent need not be manifested in express or formal terms.”
The court in Eicks held acceptance was implied by the “long established dealings of the parties.”
Except for not immediately returning the policy, every significant statement and act of the insured is totally consistent with his nonacceptance of the policy. The delay in returning the policy is at least partially explained by the fact it was delivered to the insured’s Archie, Missouri, office, whereas the insured’s business affairs, including insurance, were being handled by the Rutler, Missouri, office.
We hold that under the circumstances herein the delivery of the renewal policy by Western constituted merely an offer to insure which was not accepted by Freeman, despite the delay in returning the policy. Neither Western nor Freeman acquired any rights thereby. There was never a meeting of the minds; hence, there was no valid renewal policy as applied to Freeman and Western.
Hartford has no privity of contract with Western. Its sole claim against Western evolves from its subrogation rights from Freeman. Hartford stands in the shoes of Freeman and any defenses against Freeman are good against Hartford, the subrogee. Shelman v. Western Casualty & Surety Co., 1 Kan. App. 2d 44, Syl. ¶5, 562 P.2d 453, rev. denied 223 Kan. clxxii (1977). Freeman and Western are in complete agreement that there was no acceptance of the renewal policy and that Western had no valid policy of insurance in effect, a position which is borne out by the facts surrounding the alleged renewal. It therefore follows that the trial court erred in granting judgment against Western on Hartford’s petition and the judgment is reversed.
Various other issues are raised by Western as to additional defenses it claims. By virtue of the result herein reached these need not be determined.
We turn now to Western’s counterclaim against Hartford. The trial court ruled against Manley on its claim and, inasmuch as Western’s counterclaim arises from subrogation rights received from Manley for the $7,500 settlement, inherent in the trial court’s ruling was a denial of Western’s counterclaim, although this is not expressly stated.
It is undisputed that the bulldozer was worth $20,000 and that Manley was the owner thereof at the time of loss. It is likewise undisputed that Hartford had a policy in force at the time insuring the bulldozer.
The precise legal theory on which Manley’s action against Western was based is not before us as Western settled with Manley for $7,500. The agreement of Manley and Western for settlement of the litigation is as follows:
“Come now the parties hereto, . . . and hereby stipulate and agree that the above styled case should be, and is hereby, dismissed with prejudice by reason of the fact that the parties hereto have entered into an amicable settlement of this controversy. It is further stipulated that Manley Leasing Co., Inc. and its successors, are specifically releasing only their claims against Western Fire Insurance Company. Manley Leasing Company, Inc. expressly reserves any claim, right, or cause of action that it may have against any individual, organization, corporation, or insurance company other than Western Fire Insurance Company, and Manley Leasing Company, Inc. expressly reserves any right it may have to proceed against any other party.
“It is further stipulated by Manley Leasing Company, Inc. that this settlement is a compromise of a doubtful and disputed claim, and that the settlement between the parties hereto is not to be construed as an admission of liability nor the admission of a valid contract of insurance in favor of Manley Leasing Company, Inc.
“It is further stipulated that Western Fire Insurance Co. expressly denies liability in this matter and further expressly denies that there is the existence of a valid contract of insurance and that they intend to merely avoid further litigation in respect to the claim of Manley Leasing Company, Inc.
“It is further stipulated by Manley Leasing Company, Inc. that Western Fire Insurance Co. shall be subrogated to the extent of the settlement in this matter, to those rights, claims, actions, or causes of action that Manley Leasing Company, Inc. may have against any other person, firm, corporation or insurance company by reason of the destruction by fire of one D-8 Caterpillar Tractor Dozer, Serial No. I5A3230, which was destroyed on January 22, 1972.
“It is further stipulated that any and all costs of this action are to be assessed against Western Fire Insurance Co.”
Subrogation is the substitution of another person in the place of the creditor so that the person in whose favor it is exercised succeeds to the rights of the creditor in relation to the debt. Criss v. Folger Drilling Co., 195 Kan. 552, 556, 407 P.2d 497 (1965).
There are two kinds of subrogation, one of which is termed “conventional,” and the other, in contradistinction, “legal,” or by reason of its origin and basis, “equitable.” 73 Am. Jur. 2d, Subrogation § 2, p. 599; see also Kansas City Title 6c Trust Co. v. Fourth Nat’l Bank, 135 Kan. 414, 10 P.2d 896 (1932). In United States Fidelity & Guaranty Co. v. First State Bank, 208 Kan. 738, 749, 494 P.2d 1149 (1972), this court said:
“We have long recognized the distinction between ‘conventional’ subrogation, based on contract, and ‘legal’ or ‘equitable’ subrogation which arises by operation of law without regard to any contractual relationship. We once put it this way:
“ ‘. . . Subrogation is a creature of equity invented to prevent a failure of justice, and is broad enough to include an instance in which one party is required to pay what is, between them, the debt of another. It does not depend upon contract nor the absence of contract, but is founded upon principles of natural justice. [Citations omitted.]’ (Blitz v. Metzger, 119 Kan. 760, 767, 241 Pac. 259.)
“And, more directly, in United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 186 Kan. 637, 643, 352 P.2d 70, we said:
“ ‘It has recently been recognized that the right to legal subrogation as distinguished from conventional subrogation arises by operation of law and does not depend upon contract, assignment or agreement. (Fenly v. Revell, 170 Kan. 705, 709, 228 P.2d 905.) . .
New Hampshire Ins. Co. v. Kansas Power & Light Co., 212 Kan. 456, 510 P.2d 1194 (1973), contains the following language:
“Once an obligation to pay the loss was established it was not necessary for the plaintiffs to prove a written contract for subrogation. The right of subrogation of an insurer arises by operation of law without regard to whether there is any provision in the insurance policy or any writing declaring such right; it is a creature of equity and does not spring from contract. See, United States Fidelity & Guaranty Co. v. First State Bank, 208 Kan. 738, 494 P.2d 1149, and cases cited therein.”
At first blush, this would appear to alter existing case law, but on closer reading it simply states that legal subrogation exists between insurer and insured, regardless of whether the express contract provision required for conventional subrogation exists.
Hartford argues that Western is a mere volunteer and cannot recoup its payment. The defense that the party claiming the rights of subrogation is a volunteer is available against a claim of legal subrogation in appropriate circumstances, but not against a claim based on conventional subrogation. 73 Am. Jur. 2d, Subrogation § 23, p. 613, citing Kansas City Title & Trust Co. v. Fourth Nat’l Bank, 135 Kan. 414.
To illustrate the difference between conventional and legal subrogation, let us use the present factual situation. Western could have claimed subrogation in Manley’s claim against Hartford on three theories: (1) On the claim asserted; that is, arising from the actual subrogation agreement of the parties; (2) by the subrogation clause in the Western policy (although Western would be hard pressed to deny the policy on one hand and assert subrogation on the other); and (3) simply by virtue of having paid part of the debt. Theories (1) and (2) would be seeking recovery on conventional subrogation; that is, by virtue of the terms of legal contract or assignment creating such a right. Theory (3) would be seeking a legal subrogation, based not on any agreement granting subrogation but simply on the acts and relationship of the parties. Only in theory (3) would the claim that Western was a volunteer be a defense.
In Criss v. Folger Drilling Co., 195 Kan. at 556, this court stated:
“In Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453, it was held that where a stranger, a mere volunteer, a mere intermeddler, pays the debt of another, he cannot be subrogated to the rights of the creditor. In the opinion the court, speaking of the doctrine of subrogation, said:
“ ‘. . . It always requires something more than the mere payment of the debt in order to entitle the person paying the same to be substituted in the place of the original creditor. It requires an assignment, legal or equitable, from the original creditor, or an agreement or understanding on the part of the party liable to pay the debt, that the person furnishing the money to pay the same shall in effect become the creditor, or the person furnishing the money must furnish the same either because he is liable as surety or liable in some other secondary character, or for the purpose of saving or protecting some right or interest, or supposed right or interest, of his own. . . .’ (p. 499.)”
(Emphasis added.)
Without using the terms “legal” and “conventional” the court is applying the same criteria by making it sufficient if the original creditor gives an assignment, but requiring other conditions be met if no written assignment exists.
We therefore conclude that Western has a valid conventional subrogation right from Manley which may be asserted against Hartford. Both Manley and Western are standing in Manley’s shoes. Shelman, 1 Kan. App. 2d 44, Syl. ¶ 5. This being the case, we turn now to Manley’s claim against Hartford, which determination will be dispositive of both Western’s counterclaim and Manley’s claim.
Manley’s first claim against Hartford rests on the theory that it was a third party beneficiary of the Hartford policy. Manley seeks to reform the policy to indicate it is a loss payee or additional insured.
The lease between Manley and Freeman required the lessee (Freeman) to “keep said leased property insured at lessee’s cost for the full insurable value thereof, against damage thereto by fire, water, windstorm, explosion or other casualty, and every policy by which such insurance is effected shall contain a loss clause payable to lessor as its interest may appear.”
In the factual situation surrounding the acquisition and insuring of the bulldozer, certain undisputed facts need to be stated. Freeman’s 1970-71 Western policy listed specific items of equipment which were being insured. Various loss payable clauses are attached thereto, one of which is in favor of Manley. None of the loss payable clauses, however, indicate which particular equipment is involved therein. Significantly, the bulldozer in question was not included in the itemized equipment list at the time of issuance of the policy, although the Manley loss payable clause was a part of the policy at the time of issuance (December 17, 1970). One can only conclude that Manley had an interest in other insured Freeman equipment. The bulldozer was leased to Freeman by Manley on October 29,1971. Prior to that time it had been owned by Freeman and this was a sale-leaseback arrangement. There is no evidence of when the bulldozer was originally acquired by Freeman, nor is there any indication it was insured by Freeman while he owned it. On December 15, 1971, the Western agent requested that the bulldozer be added to the Western policy for $20,000 as of August 1,1971. This request was received by the Western home office on December 16, 1971 — one day before the policy expired. From the evidence it is clear that the Hartford agent had already received and reviewed the Western policies and made application, as the Hartford policy was effective December 17, 1971, and his testimony was to the effect that such work was completed in the first half of December. Therefore, a review of the existing Western policy would not have revealed anything relative to the bulldozer. The addition of the bulldozer to the Western policy resulted in an additional premium being charged. Manley’s assertion that Hartford knew of the Manley interest in the bulldozer by review of prior Western policies and statements of premiums paid is unfounded.
There is evidence that Buerge may have told the Hartford agent the true ownership of the bulldozer, but the Hartford agent does not recall such a conversation. Buerge testified it was his intent that Manley’s interest in the bulldozer be protected in the new Hartford policy by an inclusion therein of an appropriate loss payable clause. There is no written evidence presented regarding what was to be included in the policy relative to the bulldozer in the way of the insurance application, agent’s notes, or Buerge’s notes. The bulldozer was admittedly insured by Hartford in the blanket equipment coverage.
The trial court found that Hartford had no knowledge of Manley’s interest at the time of contracting — a finding which is supported by substantial competent evidence and will not be disturbed on appeal.
The trial court concluded as follows:
“Manley does not have any contract rights against The Hartford, since the contract did not confer any benefit upon any third party, and Manley Leasing has the burden of proof that they were the intended beneficiary of the insurance contract, Black and White Cabs of St. Louis v. Smith supra.”
As authority for this conclusion the trial court relied, inter alia, on the following statement from Black and White Cabs of St. Louis, Inc. v. Smith, 370 S.W.2d 669, 675 (Mo. App. 1963):
“Where the contract creates a right in favor of a third person, the law presumes that the party to the contract intended to confer benefits on the third person and the third party beneficiary has the right to enforce the contract although the contract also works to the advantage of the parties thereto and although the actual purpose motivating the parties in making the provisions in favor of the third party was a purely selfish one of benefiting or protecting themselves rather than of benefiting the third person.”
The factual situation in Black and White Cabs involved an agreement between stockholders that any stockholder deciding to sell stock in the corporation would first offer the stock to the corporation. The corporation was not a party to the contract, but sought to enforce it as a third party beneficiary. The Missouri court held the corporation was a donee beneficiary and could enforce the same.
Before the issue is reached of whether a third party may directly enforce a contract from which he would benefit, the third party must show the existence of some provision in the contract that operates to his benefit. He need not be personally named in the contract, but he must be a member of a designated class or identifiable in some manner as a benefited person. For a common example, let us take a bond made between owner and contractor to insure payment of materialmen. A materialman supplying materials for the contractor’s work, although not specifically named, can be sufficiently identified to pass this threshold test and can proceed to the issue of whether he can maintain an action for specific performance of the contract. In the case before us, unlike Black and White Cabs, there is no provision in the contract which even mentions the third party, let alone confers rights to him; accordingly, he fails to meet the threshold test. He is, in essence, attempting to have the contract reformed to include what one party thereto intended to include in it and then have specific performance against the other party on the reformed contract. The fact a printed portion of the contract contains the following provision does not alter the situation:
“1. This Endorsement Covers (Coverage under paragraph 1. b. hereof is afforded only if so specified in the Declarations):
“a. Contractor’s Equipment, the property of the Insured, including Contractor’s Equipment being purchased under lease-purchase agreement;
“b. The Insured’s legal or contractual liability for loss or damage, caused by a peril insured against, to Contractor’s Equipment leased or rented from others.”
The declaration of leased equipment requisite for coverage was not made. Further, the coverage, even if declaration had been made, was limited to Freeman’s “legal and contractual liability,” and apparently no action has ever been brought to determine same.
Manley’s final claim against Hartford rests in the negligent handling of the loss claim by Hartford. This relates to the fact that Hartford, after knowledge that a prior policy had some loss payable clauses attached to it, settled with Freeman without further investigation. The trial court found Hartford to be negligent in this respect.
Inasmuch as Hartford’s sole insured was Freeman it is difficult to see how this negligence could create any new rights in Manley — a stranger to the policy. Appellants cite no authority for the proposition that an insurance company must seek out uninsured persons who might have an interest in property insured by another or else be liable to the uninsured person. Manley would have had no new rights created against Hartford by knowledge of either the loss or the lack of insurance protection of its interest. Such knowledge by Manley would have placed it in a better position as against Freeman, but this does not create liability in Hartford in favor of Manley.
We therefore conclude the trial court properly entered judgment in favor of Hartford on Manley’s claim, and (by inference) properly denied Western’s counterclaim.
All points raised have been considered, but by virtue of the results herein reached need not be set forth.
The judgment is affirmed in part and reversed in part.
Prager, J., not participating.
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The opinion of the court was delivered by
Miller, J.:
The City of Baxter Springs appeals from an order of the Cherokee District Court declaring two sections of a Baxter Springs ordinance unconstitutional, and dismissing six complaints charging the defendant, Harry L. Bryant, with violations of that ordinance. We are asked to review the trial court’s ruling.
Bryant is the proprietor of an establishment known as the Sugar Bear Disco, which he has operated within the corporate limits of Baxter Springs since 1975. A “disco,” or more properly a discotheque, is, we are informed, a commercial enterprise where people gather to listen and dance to recorded music (formerly recorded on records or “discs” but now frequently recorded on tapes) and to partake of food and other refreshment. During his ownership and operation of the Sugar Bear Disco, Bryant was the holder of a cereal malt beverage license issued by the City, and he sold beer having an alcohol content of not more than 3.2 per cent to his patrons. So far as we are informed, the first few years passed without incident.
Then in September of 1978, Bryant was charged in separate complaints filed in the municipal court of Baxter Springs with four separate violations of § 8(d) and two separate violations of § 8(c) of Ordinance No. 140. Upon trial in municipal court, he was convicted of “dispensing beer and allowing dancing and not having an unobstructed view of his premises from the street.” He was fined $50 on each of the six charges.
Bryant appealed to the district court; there he filed a motion to dismiss, claiming that the ordinance denies defendant equal protection of the law, is unreasonable, arbitrary and oppressive, is overbroad in its language, and for those reasons is unconstitutional.
The ordinance, entitled BEER ORDINANCE NO. 140, was adopted by the governing body of Baxter Springs on April 27, 1937. The sections in issue read as follows:
“(c) It shall be unlawful for any licensee to sell, dispense or deliver malt beverages under said license in any room or rooms having curtains, screens or other obstructions over or across the windows of said rooms or in said rooms which shall prevent an unobstructed view from the street of the interior of the premises covered by such license.
“(d) It shall be unlawful for any licensee to suffer, permit or allow any dancing upon the premises covered by said permit or in the rooms or premises adjacent thereto, where malt beverages are sold under said license if said rooms or premises adjacent thereto are owned or under control of said licensee.”
The motion to dismiss was argued and briefs were submitted by counsel. The district court, on October 31, 1978, sustained the motion, held both sections of the ordinance unconstitutional, and dismissed the complaints. The court said:
“(9) That Sections 8(c) and 8(d) of Ordinance No. 140 of the City of Baxter Springs, Kansas, are unconstitutional in that said ordinance sets forth an unreasonable, arbitrary classification of persons, specifically in that said ordinance prohibits conduct in and sets forth requirements applying to places with licenses for businesses selling cereal malt beverages, but does not prohibit such conduct or set such requirements in such clubs as may be licensed under the Kansas Intoxicating Liquor Law as set forth in K.S.A. 41-2601 through K.S.A. 41-2635.
“(10) That the prohibitions and requirements set forth in said Sections 8(c) and 8(d) are not reasonable and are not a proper exercise of the police power of municipalities, in that said Sections 8(c) and 8(d) do not bear a real and substantial relationship to the public health, safety, morals or general welfare, and that they are unreasonable and arbitrary in that the plaintiff City can give no basis or relationship to the protection of the general welfare of the public.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the motion to dismiss filed herein by the defendant is sustained, and that the convictions of the defendant in the Municipal Court of Baxter Springs, Kansas, are hereby set aside and held for naught, and that the charges filed against the defendant herein are hereby set aside and dismissed.”
The City appeals, contending that the trial court erred in sustaining the motion to dismiss and in holding the two sections of the ordinance unconstitutional.
Before we consider the specific challenges to the ordinance before us, we should review some of the guidelines which come into play when a court is called upon to determine the constitutionality of a statute or ordinance.
“The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. [Citations omitted.]
“In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citations omitted.]
“Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.]
“The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere. [Citations omitted.]” State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 (1978).
The general rule for reviewing statutes or ordinances enacted pursuant to the police power is stated in City of Wichita v. White, 205 Kan. 408, 469 P.2d 287 (1970), as follows:
“In reviewing statutes such as these, the court begins with the proposition that all presumptions are in favor of their validity. (State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 77, 410 P.2d 308; and Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128.) The court does not sit in judgment on the merits of such legislation. If the statute here challenged does not contravene significant constitutional or inherent rights of individuals, if the classification on which it is based is reasonable, if it is within the scope of the police powers of the state, if it is appropriately related to a proper purpose of such police power, the statute is not to be invalidated by the judicial arm of government.” (p. 409.)
In State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 76-77, 410 P.2d 308 (1966), we said:
“Once a subject is found to be within the scope of the state’s police power, the only limitations upon the exercise of such power are that the regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur. Within these limits the legislature is the sole judge of the nature and extent of the measures necessary to accomplish its purpose. [Citations omitted.]
“The reasonableness of restrictions imposed by the legislature by the exercise of the police power is a judicial matter, and all presumptions are in favor of constitutionality of the act. Within the zone of doubt and fair debate legislation is conclusive upon the court and must be upheld. [Citations omitted.]”
Historically, the sale of intoxicating liquor was prohibited in Kansas by constitutional mandate from 1880 until 1948. Kan. Const, art. 15, § 10. Possession of any spirituous, malt, vinous, fermented or other intoxicating liquors was proscribed by statute, G.S. 1935,21-2101, and all such liquids were included within the statutory definition of intoxicating liquor. G.S. 1935, 21-2109. A new definition was proclaimed in 1937 when the latter statute was amended. Thereafter all beverages which contain more than three and two-tenths of alcohol by weight were “intoxicating liquor”; beverages containing that amount or less of alcohol were not. L. 1937, ch. 213, §§ 1 and 2. At the same legislative session, laws regulating the sale of cereal malt beverages were enacted, and the licensed sale of such beverages was authorized. L. 1937, ch. 214. These laws, since amended, now appear within chapter 41, art. 27 of the Kansas Statutes Annotated.
The licensing of retail cereal malt beverage outlets (except on railways) is delegated to local units of government; to cities, when the place of business is located within the city limits. K.S.A. 1978 Supp. 41-2702. A measure of local regulation is authorized by K.S.A. 41-2704 which provides in applicable part that:
“[T]he governing body of any city may prescribe hours of closing, standards of conduct, and rules and regulations concerning the moral, sanitary and health conditions of the places licensed and may establish zones within which no place of business may be located not inconsistent with the provisions of this act: Provided, That no cereal malt beverages may be sold between the hours of twelve midnight and six a.m. or on Sunday or on the day of any national, state, county or city elections, including primary elections, during the hours the polls are open, within the political area in which such election is being held. No private rooms or closed booths shall be operated in said place of business, but this provision shall not apply if the licensed premises are also currently licensed as a club under a license issued by the state director of alcoholic beverage control. Said place of business shall be open to the public and to the police at all times during business hours, except that a premises licensed as a club under a license issued by the state director of alcoholic beverage control shall be open to the police and not to the public. No person under eighteen (18) years of age shall be permitted to buy or drink any of such beverages in or about said place of business.”
The first case involving the cereal malt beverage law to reach this court was Johnson v. Reno County Comm’rs, 147 Kan. 211, 75 P.2d 849 (1938). There the act was attacked on a number of constitutional grounds. Our primary holding was that the delegation of the regulatory and licensing authority to local units of government was constitutional. Important to our consideration here is the court’s discussion of the police power in cereal malt beverage regulation. Speaking for a unanimous court, Justice Wedell said:
“Irrespective of what the legislative body said concerning the nonintoxicating character of the beverage in question, that same body, in no uncertain terms and in the same legislative session and in the following chapter, by express mandate declared the sale of the beverage should be regulated. It is not the province of a court to nullify that clear declaration of legislative will if the regulatory measure is otherwise a valid exercise of police power. Having the police power to forbid the sale of such an article entirely, it, of course, had the power to regulate its sale. (State v. Nossaman, 107 Kan. 715, 193 Pac. 347; Little v. Smith, 124 Kan. 237, 239, 257 Pac. 959.) Having the power to regulate the sale, it had the authority to determine how, in its judgment, the desired regulation could be most effectively accomplished. In the early case of State v. Durein, 70 Kan. 13, 80 Pac. 987, the rule was stated thus;
“ ‘Power to legislate for the health, morals, peace and good order of society being conceded to the legislature, that body must determine the limits of its exercise, subject only to the condition that the measures adopted be reasonably appropriate to effect its purposes, and upon this question the court will rarely substitute its judgment for that of the legislature.’ (p. 32.)
“It must be assumed the legislature fully recognized the well-known fact that all too frequently rural communities are inefficiently and inadequately policed, and hence that in such communities the sale of the beverage might well become or tend to become the source of evils which it was determined to prevent. It therefore saw fit to delegate to the township board the discretion of determining whether in such governmental subdivisions the sale of the beverage, in its sound judgment, should be permitted.” (pp. 216-217.)
Later cases have been concerned for the most part with licensing and not with regulation, and are not helpful here. Lindquist v. City of Lindsborg, 165 Kan. 212, 193 P.2d 180 (1948); Horyna v. Board of County Commissioners, 194 Kan. 445, 399 P.2d 844 (1965); Curless v. Board of County Commissioners, 197 Kan. 580, 419 P.2d 876 (1966). In Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877 (1965), where we upheld the private club act, L. 1965, ch. 316, we said: “[T]he subject of alcoholic liquor in all its forms may be regulated by the legislature through the exercise of the police power of the state in determining its policy that the general welfare, health and safety of persons and property should be protected.” (195 Kan. at 754.)
I.
Is § 8(d) of the ordinance, which makes it unlawful for any licensee to “suffer, permit or allow any dancing” upon the licensed premises, void as being an unreasonable, arbitrary and capricious exercise of the police power? Violation of this section is a criminal offense, punishable by fine and imprisonment; conviction of a licensee is grounds for the revocation of license.
The City acknowledges that “it cannot limit or prohibit dancing per se and that any attempt to do so would be a denial of due process and equal protection, as guaranteed by the Fourteenth Amendment to the United States Constitution.” True, the ordinance does not say that the patrons of the licensee cannot dance, and it does not subject the patrons to criminal penalties if they dance. Instead, the ordinance shifts the burden to the licensee to make and enforce a no-dancing rule for the licensed premises under penalty of the law. The ordinance thus prohibits dancing as effectively as if it provided that any person dancing in any establishment licensed to sell cereal malt beverages would be guilty of an offense punishable by fine and imprisonment. What the City cannot do directly it cannot do indirectly.
Is public dancing inimical to the morals, the sanitation, the health, or the general welfare of the residents of Baxter Springs? We think not. Dancing requires physical exertion; it is healthful exercise which in our physical-fitness-conscious society has wide acceptance. In Bruner v. City of Danville, 394 S.W.2d 939 (Ky. App. 1965) the court found that the City’s refusal to issue a license to hold public dances was an invalid exercise of police power. The court said:
“[Tjhere have always been certain kinds of activity which, though not harmful or offensive per se, can be not only regulated under the police power but, because of their ‘potential evil consequences,’ prohibited altogether . . . . [Cjities . . . could prohibit the operation of pool rooms. Public dance halls traditionally have been relegated to the same unenviable limbo, along with ‘traffic in intoxicating liquor, pawnbroking, carnivals and shows.’ . . . But we are of the opinion that the time has come when a more realistic view must prevail. In a city of the size and importance of Danville, where private and semi-private dances are an established motif in the pattern of normal social life, to outlaw public dances completely would be unreasonable. They may be prohibited in certain areas, such as residential zones, and subjected to precautionary conditions, provided that such territorial and other restrictions and requirements are reasonable and are set forth with substantial precision in the ordinance, but beyond that the police power becomes indistinguishable from the police state.” (pp. 943-944.)
Healthful and harmless recreation cannot be prohibited by a municipal corporation. (Emphasis supplied.) 62 C.J.S., Municipal Corporations § 211.
We are not unmindful of the cases which have held that the power of a state or municipality to regulate taverns, bars, nightclubs, and other places where alcoholic beverages are dispensed, includes the power to ban certain types of activity. The leading case in this area is California v. LaRue, 409 U.S. 109, 34 L.Ed.2d 342, 93 S.Ct. 390 (1972). The state liquor control authority had promulgated regulations prohibiting certain sexually explicit live entertainment, including nude, bottomless or topless dancers, or films thereof, from licensed bars and clubs. The Supreme Court held that under the state’s broad authority to control intoxicating liquors under the Twenty-first Amendment, the regulations did not, on their face, violate the United States Constitution, and that the regulations had a rational relationship to the purpose, the protection of the general welfare of the community. In answer to argument that the entertainment was “communicative” and thus partook of First Amendment protection, the court said:
“Our prior cases have held that both motion pictures and theatrical productions are within the protection of the First and Fourteenth Amendments. . . .
“But as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of ‘conduct’ or ‘action,’ ....
“The substance of the regulations . . . prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, ‘performances’ that partake more of gross sexuality than of communication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.
“The Department’s conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.” (pp. 116-118.)
The court later clarified the relative importance of the Twenty-first Amendment and that of other amendments in Craig v. Boren, 429 U.S. 190, 50 L.Ed.2d 397, 97 S.Ct. 451 (1976), where it said:
“It is true that California v. LaRue, 409 U.S. 109, 115 (1972), relied upon the Twenty-first Amendment to ‘strengthen’ the State’s authority to regulate live entertainment at establishments licensed to dispense liquor, at least when the performances ‘partake more of gross sexuality than of communication,’ id,., at 118. Nevertheless, the Court has never recognized sufficient ‘strength’ in the Amendment to defeat an otherwise established claim of invidious discrimination in violation of the Equal Protection Clause. Rather, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178-179 (1972), establishes that state liquor regulatory schemes cannot work invidious discriminations that violate the Equal Protection Clause.” (pp. 207-208.)
Thus state or local regulation in the field of alcoholic beverages must not be discriminatory and must not conflict with other provisions of the Constitution.
LaRue, as we have seen, dealt with nudity and grossly sexual exhibitions; that some entertainers were “dancers” was of little import to the decision. There is no claim by the City in the case before us that the “dancing” in the Sugar Bear Disco is nude, obscene, or sexually explicit, or that it is other than rhythmic movements of fully clothed patrons for their own enjoyment.
The City argues that it has the right to prohibit dancing in order to make the establishment less attractive to prospective patrons, and thus fewer sales of alcoholic beverages will be made, there will be less consumption, and the health, safety, morals and general welfare of the community will be enhanced. Some cases, cited by appellant, support this claim.
How far may a municipality go in lessening, by regulation, the attractiveness of the licensed premises? May it ban air conditioning in the summer and heat in the winter? May it ban ventilating fans? May it ban refrigeration of the products sold? May it limit freedom of speech or expression in such establishments? May it prohibit the proprietor from providing tables or chairs for the use of patrons? Surely all of these bans would make the premises less attractive and less enticing to the public; but such regulations would be wholly unreasonable. Regulations must bear a rational relationship to public health, safety, sanitation, morals, or the general welfare of the community, and they may not be discriminatory and may not encroach on the constitutional rights of the persons affected. A legislative body cannot, under the guise of the police power, enact unequal, unreasonable, and oppressive legislation, or that which is in violation of the fundamental law. Gilbert v. Mathews, 186 Kan. 672, 677, 352 P.2d 58 (1960).
We take judicial notice of the Kansas Private Club Act, K.S.A. 41-2601 et seq., as amended, and the regulations pertaining thereto, promulgated by the Department of Revenue, Division of Alcoholic Beverage Control, K.A.R. 14-18-1 et seq., and K.A.R. 14-19-1 et seq. In none of these statutes or regulations do we find prohibitions against or restrictions on dancing on club premises. Thus members of private clubs throughout this state, in the clubs in which they hold membership and in clubs which are parties to reciprocal agreements with those clubs (K.A.R. 14-19-10), may consume beverages having an alcohol content many times that of cereal malt beverages, and they may dance if they wish. We cannot but acknowledge the large number of such clubs extant in the state.
Yet persons who are not members of such clubs, perhaps because of economic necessity, and who patronize licensed cereal malt beverage establishments instead of private clubs for recreation, are denied the privilege of dancing in the City of Baxter Springs. Such regulation discriminates against a sizeable segment of our citizenry and deprives them of First Amendment rights. Will the ban on dancing tend to decrease intoxication? Appellant contends that fewer persons will patronize the licensed premises and thus there will be less intoxication and fewer incidents requiring the attention of the police if dancing is prohibited. But if those persons who do patronize the establishment are not permitted to dance, and must therefore refrain from that exercise while sitting and consuming cereal malt beverages, will less intoxication result? No statistics have been provided to support either contention. We cannot say on the record before us that the result of the ban will be to lessen intoxication, or that the ban will thus promote the general welfare of the community.
We conclude that § 8(d) of the ordinance, which in effect prohibits dancing in licensed cereal malt beverage establishments, is not reasonably calculated to promote the health, sanitation, morals, or general welfare of the residents of Baxter Springs; that it discriminates against the patrons of those establishments; and that the trial court did not err in holding § 8(d) of the Baxter Springs Beer Ordinance No. 140 unconstitutional.
II.
We now turn to § 8(c) of the ordinance, which makes it unlawful for a licensee to sell malt beverages “in any room or rooms having curtains, screens or other obstructions over or across the windows of said rooms or in said rooms which shall prevent an unobstructed view from the street of the interior of the premises . . . .”
This section of the ordinance does not require windows of any certain size or location; in fact it does not require that there be any windows at all; if there are windows, however, the licensee must not hang curtains, install screens, or place other obstructions over the windows which block the view of the interior through any such windows.
Is this section unconstitutionally vague? The test to determine whether a criminal statute or ordinance is vague and indefinite is whether its language conveys “a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice.” City of Altamont v. Finkle, 224 Kan. 221, 223, 579 P.2d 712 (1979); State v. Kirby, 222 Kan. 1, Syl. ¶ 1, 563 P.2d 408 (1977). The statutory language is comprehensible and the actions prohibited are clearly discernible, as we have pointed out above. We do not find § 8(c) vague or indefinite.
Is this section within the scope of the City’s police power, is it reasonable, and is it logically connected with the objectives? K.S.A. 41-2704 authorizes the cities to adopt rules and regulations concerning the “moral, sanitary and health conditions” of places licensed to sell cereal malt beverages. In Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 735, 495 P.2d 524 (1972), we said:
“The regulation of an occupation, trade or business is widely held to be a legitimate exercise of the police power, where the unrestricted pursuit of the same might adversely affect the public health, safety, morals or general welfare. This principle presupposes that the regulation is reasonable, is not arbitrary, and that it bears a logical connection with the objectives to be accomplished.”
Similar ordinances, forbidding the erection or maintenance, in any place where intoxicating liquor was sold, of door or window screens, window blinds, stained glass, or any obstruction over doors or windows that would prevent a full view of the interior, were attacked as unreasonable in Champer v. The City of Greencastle, 138 Ind. 339, 35 N.E. 14 (1893) and Steffy v. The Town of Monroe City, 135 Ind. 466, 35 N.E. 121 (1893). The Greencastle ordinance contained a preamble, reciting that the object of the ordinance was to provide better policing of the premises, and aid in the detection of crime. The Indiana Supreme Court said:
“[T]he validity of the ordinance depends upon whether it is a reasonable exercise of the power conferred or not. . . .
“Under this ordinance, if valid, it would make the use of the ordinary door screen or window shutters, window screens and window curtains to the doors or windows of a saloon unlawful, and it would likewise make it unlawful to maintain stained, ground, colored or darkened glass of any kind to any of such doors or windows.
“We know of our own knowledge, common alike to all, that the use of door screens, window screens, window shutters, window curtains and blinds, ground, darkened and colored glass used in and to doors and windows are among the comforts and conveniences of civilized life. They are used in other business houses than saloons, in private residences, in public buildings and offices, in hotels and dining halls, in depots, in court houses, and in churches. Indeed, it may be said that they are necessary comforts and conveniences of civilized life, almost as much so as houses are to live in and to do business in. The-protection of the occupants of such houses and places against the fierce rays of the sun in the proper use of such houses and places may be almost, if not quite, as necessary to protection against the storm and the rain, and the inclemency of the weather generally. It may be admitted that the evils arising from the sale of intoxicants have been so great that it has become the settled policy of the State, from the earliest times, to place and keep the traffic under stringent restrictions by the statutes of the State, and that these evils are often increased by violations of these statutory restrictions by licensed dealers. But we can not concur in the contention of appellee’s counsel that the saloon ‘business is an illegitimate one, and that in order to make large profits therein it is necessary to constantly violate the law.’ The business is one that any one could lawfully engage in, in the absence of any statute on the subject, and the statutes of the State, which, from time to time, have imposed restrictions and burdens upon the traffic, do not proceed upon the idea that the business is illegitimate, and seek to legalize an illegitimate business, but proceed upon the idea that the business is legitimate, and, owing to the evils arising from it, seek to place it under restrictions and burdens so as to lessen those evils.
“Be this as it may, there is no reason in saying that because some saloon keepers violate the law all shall be deprived of the use of the necessary comforts and conveniences of civilized life in their business. If the corporation can make it unlawful for them to use screens to exclude flies and insects, they may make it unlawful for them to use shutters to their doors to exclude the cold, the storm, and the rain; if it can make it unlawful for them to use window shutters and window blinds and curtains, colored, stained, and ground glass in doors and windows of their saloons, under the pretense of permitting an unobstructed view into the interior of their saloons, the better to detect violations of the liquor law, then there is no reason why they can not be compelled to make the whole front of their saloons of solid glass, without any wood or any other material. Indeed, if the corporation has the power to make the ordinance here in question, for the reasons given in the preamble thereto, then it necessarily has the power by ordinance to compel them to open the whole front of their saloons, from one side to the other, without even the poor privilege of putting solid glass in as a protection against storm, rain, and the inclemency of the weather, and against theft and robbery.
“The judgment is reversed, the cause remanded, with instructions to sustain the demurrer to the complaint.” (pp. 351-354.)
The ordinance before us would bar screens, drapes, curtains and shades. It would not contribute to the health, welfare, safety or comfort of the occupants. Law enforcement officers are permitted by K.S.A. 41-2704 to enter the place of business at any time during business hours, so that they do not need an exterior view. Private rooms or closed booths are prohibited by the same statute, so that upon entering, officers may view the entirety of the premises.
As the Steffy court observed,
“The more obvious purpose of the ordinance was to expose to the view of the public those persons of the town who might visit the saloons and drink intoxicants therein, and by reason of such exposure deter them from such visits, thereby not only restraining such patrons in their desires for intoxicants, but in the same proportion curtailing the business of the saloon-keeper.” 135 Ind. at 470.
Such is obviously the primary purpose of § 8(c) of the ordinance before us. The section has no real and substantial relationship to the moral, sanitary or health conditions of the licensed premises, and it would not promote the general welfare of the public any more than would an ordinance making the same requirement of other business establishments so that officers might detect burglaries, robberies, or other offenses.
We have not overlooked the cases cited by appellant, but find them unpersuasive and distinguishable. The statute upheld in Pride Club, Inc. v. State, 25 Utah 2d 333, 481 P.2d 669 (1971) merely required the premises to be unbarricaded, and open to inspection by peace officers. Dauenhauer v. City of Gretna, 93 So. 2d 27 (La. App. 1956) was an appeal from a revocation of a liquor license for violation of statutes, one of which required that the premises be open to view through the outside door. The statute was not challenged in that proceeding. People v. Ballas, 344 Ill. App. 644, 101 N.E.2d 844 (1951) is a published headnote only; there is no indication that the Illinois statute there involved was challenged, or that its constitutionality was determined in that proceeding. The statute has since been repealed.
We conclude that the trial court did not err in holding § 8(c) invalid. The judgment is affirmed.
Fromme and McFarland, JJ., concur in the result.
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The opinion of the court was delivered by
VALENTINE, J.:
I. The first claim of error made by the plaintiff in error is with reference to the original statement of the case of the plaintiff below, made by his counsel after the jury had been impaneled and prior to the introduction of any evidence. Section 275 of the civil code provides, among other things, as follows:
“Sec. 275. When the jury has been sworn, the trial shall proceed in the following order, unless the court for special reasons otherwise directs:
“1st. The party on whom rests the burden of the issues may briefly state his case, and the evidence by which he expects to sustain it.”
Counsel for plaintiff below, in his said statement, used the following among other language:
“That, as I was stating to you, the reason that we make this proof to you is to show to you that an insurance company cannot issue a policy, take a man's money, and give him something in return which is absolutely worthless the moment it is issued — not worth the paper it is printed on.”
Possibly a portion of this statement borders too closely upon an argument to come strictly within the provisions of the foregoing section of the civil code, but certainly no material error was committed. The insurance company did take the man’s money and did issue to him an insurance policy, and when the fire occurred it then claimed that the policy was and had always been absolutely worthless and void.
II. It is claimed that the action was commenced prematurely. By the terms of the policy sued on, the loss was to be paid “sixty days after the proofs of the same required by the company shall have been made by the assured and received at the office in Chicago.” The fire occurred December 4, 1886. Proofs of the loss were not made for more than thirty days afterward, and this action was commenced on February 5,1887, within less than thirty days after the proofs of the loss. Now, if the company had admitted its liability for the loss, or for any possible portion thereof, or probably, if it had not denied its liability wholly and absolutely, its claim in this respect would be good; but after the fire occurred, it then, and persistently afterward, denied its liability utterly and absolutely, and denied it upon the ground that the policy itself was utterly null and void and absolutely worthless. As before stated, the fire occurred .December 4, 1886, destroying substantially all the insured property, which was worth vastly more than the amount of the insurance; and the company immediately had notice thereof. The local agent of the company, L. W. Higgins, had notice as soon as the fire occurred. The general agent at Chicago, Thomas B. Burch, and the adjuster, M. M. Hamlin, had notice very soon afterward. Hamlin visited the locality where the fire occurred, on December 15, 1886, and made some inspection and examination with reference thereto. On December 24, 1886, both Hamlin and Burch wrote letters to Higgins denying the liability of the company, and in effect stating that the company would not pay anything on account of the loss. Hamlin’s letter reads as follows:
“Phenix Insubanoe Company.
M. M. Hamlin, Adjuster, Omaha, Neb.
“Omaha, Neb., December 24, 1886. “L. W. Higgins, Esq., Kinsley, Kas.:
• “Dear Sir — I. am just in receipt of a letter from our Chicago office, same being in reply to my letter written from Kinsley, and, if Mr. Weeks thinks now there is any boy’s play about this matter, you can say to him, we deny liability. Our Chicago office is firm, decided and in earnest, and we can afford to spend as much as Weeks boasts that he can, and then come out ahead.
“Personally I regret the unfortunate combination, and regret that it should in any manner interfere with your business; but otherwise we are ready for conflict. Let it come.
Yours, etc., M. M. HamliN.”
Burch’s letter is too long to be given here. These letters were handed by Higgins to the plaintiff, Weeks, about December 27 or 28, 1886, and Higgins then informed Weeks that the company denied all liability, and \yould not pay anything on account of the loss. Proofs of loss were afterward made, but not within thirty days after the fire. We think that the aforesaid denial of liability on the part of the insurance company, for the alleged reason that the insurance policy was itself absolutely void, was in effect a waiver of all its rights to require proofs of loss, and to have the time for it to make payment of that portion of the amount of the loss for which it was liable extended sixty days after such proofs of loss were made. (Cobb v. Insurance Co., 11 Kas. 93, 97, et seq., and cases there cited.) For this reason we do not think that the action was commenced prematurely.
III. We do not think that the claims of error numbered 3, 4, and 5, in the brief of counsel for plaintiff in error, require any comment. None of them are tenable under the facts of this case. We shall therefore pass to the claim of error numbered 6, which is, that the court below erred in refusing to give certain instructions to the jury. By this claim the plaintiff in error attempts to raise the question of the validity of the insurance policy. It claims that the insurance policy was at the beginning, and always has been, void because of the untruthfulness of the answers made by the plaintiff in his application for the insurance. It is claimed that the plaintiff insured his property as an elevator, when in truth and in fact it was a mill; and that he represented that he kept a watchman on the premises during nights, and that the watchman had no other duties to perform, when in truth and in fact he kept no watchman at all. With respect to the elevator, the question and answer, or rather the statements in the application, are as follows: “Name of elevator: Elevator A.” With respect to the watchman, the questions, answers and statements are as follows: “Watchman: Is a watchman kept on the premises during the night? Yes. Is any other duty required of the watchman? No.” The facts affecting these questions are substantially as follows: The building was an elevator, containing steam fixtures and machinery to operate the same, a corn-sheller and some other articles named in the application; and also some machinery for grinding corn and other grain, which was not mentioned in the application. As to the watchman, the plaintiff, with eight or ten other business men of the city of Kinsley, employed a private watchman to watch their property during nights, including the property in question, and this watchman had no other duties to perform. The local agent had complete knowledge of all these matters, both with respect to the elevator and all its machinery and contents and how it was used, and with respect to the watchman. Just before the application was made out and sigued, the local agent went through all parts of the elevator building,' and examined the same with all its contents, and he then filled up the application, he writing all the written statements therein, and all the answers to the questions therein contained, and then stating to the plaintiff that the questions were all properly answered, and the plaintiff believed they were, and then signed the same. The plaintiff did not make a single untruthful statement to the local agent. The evidence shows all these things, and the special findings of the jury show the most of them.
We would further state, in this connection, that the application was originally a printed application furnished by the insurance company, with blanks therein to be filled up before signing, and then signed by the applicant; and it contained not only the aforesaid questions for the applicant to answer, but it also contained the following among other statements: The party subscribing the application “hereby covenants and agrees to and with said company that the foregoing answers are true,” etc., “and such answers or statements are to be always construed and accepted as forming and constituting a continuing warranty; ” and the policy which was afterward issued contains a statement that the application should “be considered a part of this contract and warranty by the assured.” It was admitted by the defendant’s answer and also shown by the evidence “that L. W. Higgins was and is a duly-authorized agent appointed by the defendant at Kinsley, Edwards county, Kansas,” but the exact scope of Higgins’s agency is not shown. The policy also contained a provision that “the insurance may also be determined at any time at the option of the company, on giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term of the policy.” The answers and statements contained in the application were substantially true, although, perhaps, not as complete and exact as they should have been; but the company’s agent at Kinsley knew all these things, and the company is bound to know what he knew; and yet the company took the applicant’s money, issued to him the policy, and never canceled the same, although it had the power to do so at any time if it so chose. • The company chose to let the insurance stand until the fire occurred, and then, for the first time, it claimed that the insurance was void. This does not seem like acting in good faith. Under the facts of this case, we do not think that the policy is void, and, in support of this view, we would refer to the following cases decided by this court: Sullivan v. Phenix Ins. Co., 34 Kas. 170; Continental Ins. Co. v. Pearce, 39 id. 396; Insurance Co. v. Barnes, 41 id. 161; Protective Union v. Gardner, 41 id. 397; Insurance Co. v. Hogue, 41 id. 524; Insurance Co. v. Gibbons, 43 id. 19; Insurance Co. v. Gray, 43 id. 497.
IY. As a seventh and last complaint, the plaintiff in error claims as follows:
“The verdict and judgment were excessive, and contrary to law. The petition claimed $2,500, with seven per cent, interest from February 4, 1887:
Interest from Feb. 4,1887, to Nov. 5, 1887 .... $131 72
Principal. 2,500 00
Total.$2,631 72”
We think this claim of the plaintiff in error is correct. The jury calculated interest from the time of the fire, to wit, December 4, 1886., while under the petition of the plaintiff below they should have calculated interest only from February 4, 1887, as the petition did not ask for any interest prior to that time. (Civil Code, §87, subdiv. 3; Green v. Dunn, 5 Kas. 254, 261, 262; City of Burrton v. Savings Bank, 28 id. 390, 393.) The judgment was rendered November 5, 1887, for $2,660.42. This we think is the only substantial error committed in the case.
The judgment of the court below will be modified by reducing it from.$2,660.42 to $2,631.72.
All the Justices concurring.
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Opinion by
G-reeN, C.:
James S. Bermingham, as administrator of the estate of Thomas Sewell, brought this action in the district court of Wyandotte county, against the city of Kansas City, to recover damages for the wrongful killing of his intestate, alleged to have been caused by the negligence of the city, in permitting an excavation in the sidewalk on the west side of James street, and within the corporate limits of the city, to remain unprotected by barriers and lights, or other signals to warn people of the danger of falling into the same. It appears that a building was being erected on the street in question, and an excavation had been made in the sidewalk for an area-way under the same seventy-two feet long, twelve feet wide and seven or eight feet deep, and it is claimed that this excavation was not sufficiently protected, especially upon the south end; the only protection being a board nailed to the side of the building, immediately south of the building, some three feet above the sidewalk and slanting diagonally to the outside line of the curb, a distance of twelve feet. It is claimed that there were no lights or barriers, other than this board, on the south side of the excavation, and that on the night of the 27th of July, 1886, Thomas Sewell fell into this exea vatiorf and was killed, from the carelessness and negligence of the defendant below. At the July term, 1887, the action was tried by a jury, and a verdict and judgment were rendered in favor of plaintiff for $5,000. The city, claiming that there were errors upon the trial in the district court, brings the case here for review.
I. The first claim made by the city is that there was contributory negligence, without which the injury could not have occurred; and that the verdict and findings were against the evidence and contrary to the law as given by the court. We have carefully considered the entire record in this case, and there is certainly some evidence to support the verdict and the special findings of the jury. One witness testified that he saw the deceased about half-past nine o’clock on the night of the 27th of July; that he was sober and in good health. He was found on the following morning in the excavation dead; and in answer to special questions the jury said that he was not intoxicated on the night of the accident. It was disclosed in the evidence that a bottle was found upon his person, containing liquor, but there is nothing in the record to indicate that he was under the influence of liquor, when last seen on the night in question. There is evidence sufficient in the record to support the findings and verdict of the jury.
II. The plaintiff next complains that the court erred in giving the first and second paragraphs of the sixth instruction, which reads:
“Before the plaintiff can recover a judgment in this action, it must appear by a preponderance of the evidence: (1) That plaintiif’s intestate, Thomas Sewell, was killed as the result of a defect, or excavation in the sidewalk on James street in the defendant city, and that such excavation was left in an unsafe condition, and (2),that said city or its officers were negligent in permitting said sidewalk to remain in said unsafe condition at the time said Thomas Sewell is alleged to have been killed. To charge the defendant with negligence,it must appear that the proper officers of the city had notice of the unsafe condition of the sidewalk in time to have prevented the killing of Thomas Sewell by falling into said excavation, or that by the exercise of reasonable and ordinary care and diligence, they could have known of the unsafe condition of said sidewalk in time to have prevented such killing. By reasonable and ordinary care and diligence, is meant that degree of care and prudence which an ordinarily careful and prudent man would reasonably be expected to use under similar circumstances.”
Counsel contends that the jury were misled by the court’s instruction in calling the opening in the sidewalk a “ defect,” and that attention should have been directed more particularly to the question of the sufficiency of the guard and signal lights. Possibly the instruction may be subject to some criticism in the language used, but it will be noticed that the court referred to this place as a “defect or excavation,” and in one sense it was a defect — that is, there was a want of something necessary to make a complete sidewalk along James street, and to that extent it might be reasonably characterized as a defect. We do not think the language used in the in - struction is prejudicial error.
III. The city complains of the seventh, eighth, ninth and tenth instructions. In the seventh instruction, the court told the jury that every person “is presumed to act with ordinary care and prudence, until the contrary appears.” The eighth instruction counsel contends to be good law in the abstract, but bad law as applicable to the case at bar. The court simply stated the law as to the liability of cities for negligently permitting dangerous defects to remain in sidewalks, no matter how such condition was caused. The ninth instruction is a correct statement of the law with reference to the use of the sidewalk, and the qualifying clause, “not already otherwise in use,” contended for by counsel, was not necessary to make the instruction good. The tenth instruction is in regard to the necessity of notice, and the court correctly stated that it was not necessary that the city should have actual notice of the unsafe and dangerous condition of the sidewalk, if the jury should find that the dangerous con dition bad existed a sufficient length of time before the accident to have enabled the city, through its officers, by ordinary care and diligence, to have known of the existence of such defects and remedied the same. Counsel makes the same criticism upon the court’s language of “unsafe and dangerous condition of the sidewalk,” which we have already noticed, and contends that in keeping before the jury the defective condition of the walk, instead of the defective manner of guarding, or of giving notice of the condition, which he claimed was legal and permissive. We do not think the jury could have been misled by any of these instructions complained of, especially when taken in connection with the entire charge of the court.
IV. Counsel for the city asked certain instructions upon contributory negligence which were refused, and this, he contends, is error. The court fully instructed the jury upon contributory negligence, and was under no obligation to repeat such instruction, in another form, at the request of the defendant below.
V. The next error which counsel contends for is the refusal of the court to submit certain questions to the jury. The first question refused reads as follows:
“From all the surrounding circumstances, the erection of the building, the building material on the street, and the location of Sewell’s residence, with relation thereto, and the direction to travel to and from his work, do you find that the deceased knew or had good reason to know of the excavation and its surroundings at the time he sustained the injuries that caused his death ? ”
While the court might with propriety have submitted this question to the jury, we do not think that it was prejudicial error to refuse the same, inasmuch as a number of the questions, with reference to the condition of the sidewalk and the sufficiency of the protection and signal lights, were submitted.
The tenth special question, refused, reads as follows:
“If you find that such guards and lights were there at the excavation, and that they were not sufficient to notify Sewell of tbe excavation, state what in your opinion would be reasonably necessary in the shape of guards and lights to have given any travelers on the sidewalk, exercising ordinary care, notice ? ”
Clearly this question was properly refused by the court. The jury impaneled was simply to try the issues joined in the particular case, and it would not have been proper, by any question submitted to them, to call forth an opinion as to what was necessary to properly guard this excavation, and we think the question was very properly refused.
VI. We see no error in the last instruction given by the court, of its own motion, which counsel for plaintiff in error contends was erroneous. The court told the jury in its instruction, that if the contractor of the building being erected provided and maintained reasonably safe guards or signals, to protect persons traveling along the sidewalk in front of the building from injury, this would relieve the city from liability the same as though such guards and signals had been placed and maintained there by order of the city, and we think this is a correct statement of the law.
VII. The final error contended for is, that the answers to the special questions were evasive, untrue, and not directly responsive to the questions themselves; but we do not think this position of counsel well taken. We have examined each special question answered by the jury in this case, and we think the answers are direct and intelligent responses to the questions propounded, and are each and all supported by some evidence.
There is no error in the record, as brought to this court, and we recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
The plaintiff recovered j udgment against the defendants in the district court of Neosho county for $241.07, but not being satisfied with the amount of the recovery, he brings the case here and asks a reversal.
The case was tried without a jury, and the court made special findings of fact, and the only complaint now made is that the findings and judgment are not sustained by the evidence. It is perhaps unfortunate for the plaintiff that there is no statement in tbe case-made that it contains all the evidence offered on the trial. There is a statement to that effect in the certificate attached to the case-made, but this statement is without any force. (Eddy v. Weaver, 37 Kas. 540; Hill v. National Bank, 42 id. 364.)
As the record brought here does not show that it embraces all the evidence upon which the findings and judgment were based, we cannot say that they are without sufficient support. Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
On the 21st day of June, 1886, James Hite commenced his action against Joseph Stimmell before a justice of the peace of Brown county, to recover the possession of two steers, of the value of $63. The defendant obtained judgment before the justice of the peace, and the plaintiff appealed to the district court. The case was tried before the court with a jury, at the November term for 1886, but the jury having disagreed, the case was continued. A second trial was had with a jury at the February term of the court for 1887. The jury returned a verdict for the defendant. Judgment was entered accordingly. The plaintiff excepted, and brings the case here. The petition in error was filed in this court on January 25, 1888.
The defendant has filed a motion to dismiss the proceedings in error, upon the ground that since the filing of the case in this court the jurisdiction of this court in cases of error has been abridged by the Laws of 1889, ch. 245, §1, (Gen. Stat. of 1889, ¶4642.) That statute reads:
“No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars ($100), except in cases involving the tax or revenue laws, or the title to real estate, or of an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court trying the case involving less than one hundred dollars ($100) shall certify to the supreme court that the case is one belonging to the excepted classes.”
Under this statute, it.is claimed that this court has no jurisdiction, because the amount or value in controversy, exclusive of costs, is less than $100. This proceeding in error was brought to this court before this statute was enacted. The statute does not deprive the court of jurisdiction of cases already pending in the court, but provides that (after the passage of the act), no appeal or proceedings in error shall be had or taken to the supreme court in any civil action, unless the amount or value in controversy, exclusive of costs, exceeds $100, with certain exceptions. “It is in general true,” say the books, “ that no statute is to have a retrospect beyond the time of its commencement.”
Again, appeals or proceedings in error are to be favored. It is quite clear, therefore, that this court has jurisdiction to pronounce judgment in all cases pending in this court at the time the statute was adopted, but no jurisdiction to hear or determine cases prohibited by the statute of 1889 from being taken to this court after that statute went into force.
In the case of Ex parte McCardle, 7 Wall. 506, to which we are referred, we find upon examination that the federal statute affirming the appellate jurisdiction of the United States supreme court in eases of that class was expressly repealed. After the repeal, that court had no jurisdiction of the case then pending before it. When the jurisdiction of a cause depends upon the statute, the repeal of the statute takes away the jurisdiction. (Insurance Co. v. Richey, 5 Wall. 541.) That case is unlike this. The motion to dismiss will be overruled.
Upon the trial, Joseph Stimmell was asked on cross-examination, after testifying that he had taken several parties to the herd to see the cattle in dispute, this question:
“Q,. Why did you take those parties there to identify the cattle? A. Simply because I wanted to be perfectly sure that they were mine, and to substantiate the evidence if I had to go into controversy with Jim Hite; because — well, I say that I took those witnesses there to identify those cattle in case he and I should ever have to have trouble with those cattle.”
This was an answer to the question, and all the witness was asked for. But taking advantage of the situation, he testified further before the jury, as follows:
“ I wa’s told that Jim Hite was a man that had trouble with everybody that he had anything to do with; that he had taken cattle that belonged to other parties. And one man in particular told me that he knew that Jim Hite had at one time a steer that belonged to him, but he had no evidence to prove it, and he had just simply let him go.”
The plaintiff moved to have that part of the answer of defendant which was merely hearsay evidence stricken out. This motion the court overruled. The plaintiff excepted.
The evidence which was asked to be withdrawn from the consideration of the jury was incompetent, irrelevant, and hearsay; therefore the trial court committed error in overruling the motion of plaintiff. (Muscott v. Hanna, 26 Kas. 770; 1 Greenl. Ev., 15th ed., § 99.) The evidence was prejudicial and may have influenced the jury in its verdict. The court’s attention was expressly called to the matter and there seems to be no excuse for its refusal to rule out such hearsay statements.
Again, W. E. Lewis, a witness called for the defendant, was permitted to testify as follows:
“ Q,. I will ask you were you present at the trial before the justice? A. I was.
“Q,. Did you see either of the cattle there, produced before the jury? A. Yes; saw the two, but the one that I noticed mostly was that with the white stripe on his side.
“Q,. You may state who, you say, they belonged to? A. I say they belonged to Mr. Stimmell.
“Q. Whose cattle are they? A. I think they are Mr. Stimmell’s.”
This evidence was objected to by plaintiff. Other witnesses were permitted to testify in a like manner, over the objections of the plaintiff This evidence was incompetent. (Simpson v. Smith, 27 Kas. 565.) It was said in that case that—
“ It is seldom competent to prove a fact by a simple assertion of the fact itself. And this is especially true where the fact is of a complex character, and is the principal, if not the only ground of contention in the case. . . . As a general rule, only such facts can be testified to directly by the witness as are comparatively simple, primary and elementary, and such only as come within the direct and immediate cognition of his senses. The witness should generally be directed to state what he has seen, heard, etc., and then he should state the same in detail and not attempt to give it in the aggregate. Now, ownership of property is not one of such simple, primary and elementary facts as come within the direct and immediate cognition of the witness’s senses. On the contrary, it is one of that class of complex facts which can only be conceived in thought or realized in consciousness as a combination of a variety of constituent facts, or as an intangible inference or mere conclusion drawn from a variety of other facts more simple and less complicated in their nature.”
In the present case, the principal fact to be proved was, whether the plaintiff owned the steers in controversy. If he owned them, he was entitled to recover. If he did not own them, he was not entitled .to recover. It was simply this question of ownership and nothing else which the jury were impaneled to try. It was, therefore, incompetent to permit witnesses to testify simply as to ownership.
Other alleged errors are discussed in the briefs, but as they are not very material one way or the other, we shall not comment thereon.
It is, perhaps, unfortunate that we are compelled to grant another trial in this case, but as the plain and ordinary rules of evidence were flagrantly violated upon the trial, and as exceptions were properly taken by the plaintiff, we cannot avoid the duty imposed upon us.
The judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring.
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The opinion of the court was delivered by
YaleNTINE, J.:
On July 10, 1886, an action was brought in the district court of Harper county by the Buford & George Implement Co., a corporation, against W. M. Warner and W. F. Miller, partners as Warner & Miller, to recover $3,093.61 on certain instruments in writing. Also at the same time an order of attachment was procured by the plaintiff and was levied by the sheriff upon certain property' as the property of-the defendants. On April 6, 1887, E. G. Hoopes, under the provisions of the General Statutes, (Gen. Stat. of 1889, ¶¶ 4123, 4124,) interpleaded, claiming the property under a certain deed of assignment executed to him by Warner & Miller and their wives on June 15, 1886. On. January 23 and 24, 1888, a trial was had between the plaintiff, The Buford & George Implement Co., and the inter-pleader, Hoopes, and afterward and on January 31, 1888, a judgment was rendered in favor of the plaintiff and against the interpleader, giving the property to the plaintiff and assessing the costs against the interpleader; and to reverse this judgment the interpleader, as plaintiff in error, brings the case to this court.
Extensive and elaborate briefs have been filed by counsel on both sides; but it seems to us that much of the argument made by counsel cannot be considered by this court. Two principal questions are presented by the brief of the plaintiff in error, as follows:
“1. Did the court below commit error of law, at the trial, by permitting the plaintiff below to introduce, over the objection and exception of the interpleader below, evidence tending to prove that the deed of assignment' had not been executed and delivered as set forth in the interplea of the interpleader ?
“2. Was the finding of the court below unsustained by the evidence, and contrary to the law?”
The first question is supposed to arise upon the following facts: The interpleader in his pleading set forth'a claim to the property in controversy under the aforesaid deed of assignment. The plaintiff in its reply thereto set forth facts putting in issue the execution of such deed of assignment. This reply was verified by the affidavit of one of the attorneys of the plaintiff, as follows:
“State op Kansas, Harper County, ss. R. B. Shepard, being first duly sworn, deposes and says: That he is one of the attorneys for the plaintiff in the above-entitled action; that he believes the facts stated in the foregoing answer to be true, and the reason why this affidavit is not made by the plaintiff is, that said plaintiff is not a resident of and is now absent from the state of Kansas. R. B. Shepard.”
It is claimed by the interpleader that this verification is not sufficient, for the reason that it does not state that the facts set forth in the plaintiff’s pleading were within the personal knowledge of the attorney verifying the same. This is the sole foundation for the first question presented by the inter-pleader. This verification was made and the pleading thus verified was filed on May 3, 1887. The trial did not take place until in January, 1888, as aforesaid. After the case was called for trial and after the jury was impaneled, the counsel for the plaintiff stated its case in full to the court and jury. Then one of the counsel who appeared for both the defendants and the interpleader stated their case to the jury, setting forth in considerable detail the execution and delivery of the aforesaid deed of assignment, that the assignee who was then the interpleader had entered upon the discharge of his duties, had taken possession of the property, had had it appraised, etc. The plaintiff’s counsel then made the following additional statement:
“ GentlemeN of the Jury : I will state our defense to this action of E. G. Hoopes in as few words as possible.
“We have about fifteen defenses to Mr. Hoopes’s claim in this matter, and one of them is, that Warner & Miller never executed a deed of assignment; and another is, that Hoopes never gave any bond at the time of entering into the possession of this property; and another is, that this property never went into the possession of Mr. Hoopes, and the assignment was only made for the purpose of worrying and delaying the creditors of Warner & Miller; that this deed was not executed until October, 1886, and that Hoopes never filed a bond; and that, therefore, Mr. Hoopes has no claim or right to the possession of this property; and for these facts the Buford, & George Implement Company is entitled to recover the amount of its claim.”
The parties then went to trial upon all the pleadings, including the aforesaid pleading of the plaintiff’s, putting in issue the execution of the aforesaid deed of assignment and the verification thereof, without interposing any objection to the verification and as though it was perfect in every respect. The plaintiff first introduced its evidence. The interpleader then introduced, his evidence, which had relation to the execution of and included the deed of assignment and all that was done under it, etc. The plaintiff then offered to introduce evidence in rebuttal, but the interpleader “objected because under the pleadings no evidence is necessary, the execution of the deed of assignment not being denied under oath as required by law.” The court overruled the objection, and the plaintiff then introduced further evidence; and the interpleader also introduced further evidence. It does not appear that any other or further objection was made to the aforesaid verification.
We shall decide the question now presented upon the theory that when a pleading is verified by the party’s attorney, it should be stated or shown somewhere that the attorney has personal knowledge of the facts set forth or involved in the pleading; and upon this theory, did the court below commit any material error? The statutes applicable to this question are §§ 108 and 114 of'the civil code. We are inclined to think that the court below did not commit any material error. The pleading of the plaintiff gave ample notice to the inter-pleader that the plaintiff denied the execution of the deed of assignment, and that it intended upon the trial to rely upon such denial as a defense to the interpleader’s claim; and such pleading was in fact verified, and no motion was ever made to strike it from the files or to strike out or set aside the verification thereof. (Warner v. Warner, 11 Kas. 121.) Indeed, no objection of any kind was made to the verification before the trial. The interpleader went to trial upon this pleading and the verification thereof without objection, and did not object until after a large portion of the evidence had been introduced. The court probably then had the discretion either to overrule the objection, as it did, or to require that the verification should be amended; but, exercising a sound judicial discretion, the court probably did right in overruling the objection. The first question, therefore, presented to this court by the interpleader, who is now the plaintiff in error, must be decided against him.
The next question presented by the interpleader is whether the court below erred or not in its findings upon the evidence. The trial was at first commenced before the court and a jury, but before the trial was completed the court, with the consent of the parties, discharged the jury, and the trial was then carried on to its termination before the court alone. Now the question whether the court erred or not in its findings depends entirely upon the evidence introduced on the trial, and we cannot determine that the court erred unless we have the whole of such evidence before us. We have nearly 100 pages of evidence, closely written upon a type-writer, but there is nothing in the case or record that shows that this is all the evidence; hence, according to all the decisions of this court upon the subject, we cannot say that the court below erred in its findings or decision upon the evidence. (The State v. Comm’rs of Harper Co., 43 Kas. 195-197, and cases there cited; same case, 23 Pac. Rep. 101, 102; Johnston v. Johnson, 44 Kas. 666; same case, 24 Pac. Rep. 1099.) The defendant in error, plaintiff below, raises this question directly and specifically, and objects to our consideration of the case upon the evidence, for the reason that the record brought to this court does not purport to contain all the evidence; and under the foregoing decisions we think the objection is good. When a case-made or record brought to the supreme court does now purport to contain all the evidence introduced on the trial below, the supreme court cannot say that any finding or decision of the trial court founded upon such evidence is erroneous.
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
Johnston, J.:
On August 16, 1886, Daniel Ensign instituted an action in the district court of Johnson county against Caroline C. Ensign, his wife, to obtain a divorce, the custody of their child, and to have certain property decreed to him. For the purpose of making service by publication, and on the same day that the petition was filed, Daniel Ensign filed his affidavit, setting forth that service of summons could not be had upon the defendant within the county of Johnson or the state of Kansas. He then proceeded to make service by publication in a newspaper, and by the terms of the notice, which was duly published, the defendant was required to answer the petition on October 5,1886. No copy of the petition nor of the publication notice was sent to the defendant at her place of residence within three days after the first publication of the notice was made. No attempt was made to take a decree at the January term, 1887, of the district court, but on January 24, the plaintiff below filed another affidavit, in which he stated that at the commencement of the action he had no knowledge of the post-office address of his wife or of her whereabouts, and had no knowledge of her post-office address or residence within three days after the first publication of notice, and that he could not ascertain her post-office address by any means within his control, and that for three months after the first publication was made he did not know and could not ascertain the post-office address of the defendant by any means within his control; and for these reasons he could not send a copy of the petition and notice to her. On February 17, 1887, he sent a copy of the petition and publication notice, addressed to her at Seattle, Washington territory; but the letter containing them was not called for at the Seattle office, and was returned to the sender on March 5,1887. At the May term, 1887, the cause was tried, and a decree of divorce granted — no appearance being made by or on behalf of the defendant. On May 14, 1888, Caroline C. Ensign appeared and moved the court to vacate the judgment and decree, on the ground that it had been rendered without jurisdiction of the person of the defendant. It was contended that, as the plaintiff had not inclosed in an envelope addressed to the defendant a copy of the petition and of the publication notice within three days after the1 first publication was made, no jurisdiction could be acquired, unless an affidavit had been made and filed within three days after the first publication was made that her residence was unknown to him and could not be ascertained by any means within his control. The court denied the motion, and this ruling is assigned for error.
No error was committed. It is true, as contended, that the sending of a copy of the petition and of the publication notice, addressed to the defendant at her place of residence within three days after the first publication was made, is a part of the service where the residence is known, (Lewis v. Lewis, 15 Kas. 181;) but such copies cannot be mailed to the defendant where her place of residence is unknown; and the making and filing of an affidavit that such residence is unknown and cannot be ascertained by any means within the control of the plaintiff, is no part of the service, and it is not essential that it shall be made and filed within three days after the first pub lication is made. This affidavit simply furnishes proof to the court that the requirements of the statute have been complied with so far as possible, and it must be made and filed before a judgment of divorce can be granted. This question was directly determined in the recent case of Larimer v. Knoyle, 43 Kas. 338, and the conclusion there reached sustains the decision of the district court in this case.
Following the ruling in that case, we will affirm the judgment in this.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
This was an appeal from a conviction for a violation of the prohibitory liquor law. The information charged A. Lawson with three distinct offenses, in three counts, and was verified by the county attorney on information and belief. Prior to the filing of the information, the county attorney, in pursuance of ¶ 2543, General Statutes of 1889, caused a witness to be brought before him and examined as to his knowledge of violations of the prohibitory liquor law by the appellant, and, in answer to questions, the witness stated that he knew of sales made by appellant to himself and to four other persons. The statement of the testimony so taken was attached to and filed with the information. The names of those .mentioned in the statement, as well as of numerous other persons, were indorsed upon the back of the information as witnesses for the State. In the course of the trial several witnesses testified, over objection, to specific sales not referred to in the statement filed with the information; and this is the particular ground of complaint.
The statement by the witness examined before the county attorney, and which is filed with the information, constitutes a bill of particulars, specifying the particular offenses on which the state relies. It is filed for the benefit of the defendant, and gives notice to him of what is intended to be given in evidence. Having filed this statement and specification, the prosecutor is confined in his proof to the offenses particularly specified. If he desires to offer proof of other sales, he could, with the permission of the court, have filed an additional specification or bill of particulars. This question was before the court in The State v. Whisner, 35 Kas. 271. In respect to this statement, it was there said:
“The county attorney clearly had the right, for the benefit of the defendant, to file with his information a bill of particulars, or any sworn statements, showing what specific offenses he intended to charge, when he verified the information. All of this enabled the defendant to prepare his defense, and after such statements or evidence bad been filed with the information, the defendant could not be convicted of any offense not therein referred to or set forth.”
See also Commonwealth v. Snelling, 15 Pick. 321; Commonwealth v. Giles, 1 Gray, 466; 1 Bish. Cr. Proc. § 643.
While there seems to be abundant testimony to establish the sales that were particularly specified, we are unable to say from the record that the defendant was not convicted of sales not specified. Only three offenses were charged, and there is testimony of many more than three sales by Lawson; but the state did not elect to rely on any particular sale about which testimony was given; so we cannot say that the conviction was not for sales to McNinney, Pugh, and others— sales not specified or referred to in the statement filed by the county attorney.
For this error there must be a reversal of the judgment, and a new trial.
All the Justices concurring.
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Opinion by
Green, O.:
John T. Stephens brought this action in the district court of Sedgwick county to set aside a deed, alleged to have been fraudulently obtained by G. T. Oldham, for lot number 36, on Court street, in the city of Wichita. At one time, it seems the plaintiff below had owned the lot in question, but did not pay the taxes assessed against it, and it had been sold for the taxes and a tax deed executed to the purchaser. Sometime after this, the grantee in this tax deed commenced a suit against Stephens, the former owner of the lot, to quiet title, and on the 22d day of October, 1883, obtained a judgment against him, quieting the title to said real estate as against Stephens and all persons claiming under him. Stephens being a non-resident of the state at the time, service was made upon him by publication. On the 3d day of January, 1887, Stephens and his wife made a quitclaim deed to Oldham of all their interest in and to the lot, and, on the 18th of January following, this action was commenced by Stephens to set aside this deed, alleging that the same had been obtained by deception as to the title and value of the lot. The claim was made that Oldham, through a brother who lived near Stephens, in Jasper county, Missouri, represented to Stephens that he had lost the title to said lot by a tax deed, and that the lot was of little value, being some distance from the business part of the city; that most of the improvements of the city were being built on the other side of the river from where this lot was located; that relying upon these representations, Stephens made the quitclaim deed, in consideration of $100, $10 of which was paid in cash sometime after the delivery of the deed; that Old-ham assumed the payment of a debt of $40 which Stephens owed and gave his note for $50; that at this time the lot was reasonably worth $4,000. The answer of Oldham put in issue all of the allegations of the petition, except the agency of the brother living in Missouri.
At the November term, 1887, the case was tried by the court, and special findings of fact and conclusions of law were made in favor of the plaintiff. The defendant below brings the case to this court for review.
It is contended by the plaintiff in error that no frand can be committed against a person respecting property in which he has no interest, where such person simply makes a quitclaim deed; that Stephens showed upon the trial of this action in the court below that at the.time of the giving of the quitclaim deed he had no title to the lot. It appears from a record of a judgment in the same court, wherein Ida E. Harris was plaintiff and the defendant in error in this case was defendant, that Ida E. Harris was the owner and in the actual possession of this lot, and that the title to the lot had been quieted in Harris and against Stephens and all persons claiming under him. This evidence was introduced by the plaintiff himself. If this judgment is to have any force and effect whatever, it seems to us that it is decisive of this case. The court had jurisdiction of the property. The findings and judgment of the court barred Stephens of all right and title to the real estate in controversy. Faith and credit must be given to such^a judgment. (Venable v. Dutch, 37 Kas. 515; Dillon v. Heller, 39 id. 599; Comm’rs of Marion Co. v. Welch, 40 id. 767.) It was said in the last case cited that—
“In an action to quiet title to land, a general finding of title in the plaintiff) and consequently of no title in the defendants, is a conclusive and binding decision against the defendants on the question of title from whatever source it may be derived, and forever estops them from asserting a claim of title which existed at the time of the finding and judgment.”
Whatever doubts may have existed in the minds of the bench and bar of the state in regard to the force and effect of such proceedings heretofore, the quéstion has been set at rest by a recent decision of the supreme court of the United States, in the ease of Arndt v. Griggs, 134 U. S. 316. In speaking for the court in that case, Mr. Justice Brewer said: “A state has power to provide by statute that the title to land within its limits shall be" settled and determined by a suit in which the defendant, being a non-resident,.is brought into court by publication only.” Giving faith and credit to the judgment in the case of Harris v. Stephens, the title to the lot vested in Harris before the quitclaim deed was made from Stephens to Oldham, and Stephens parted with nothing by making conveyance. Fraud has been defined to be the unlawful appropriation of another’s property with knowledge, by design and without criminal intent. (1 Bouv. Law Diet. 612.) According to the definition, fraud can only be perpetrated on rights, that is legal rights. (Bigelow, Frauds, 14.) Having lost all interest in the property in question by a failure to pay the taxes thereon, and a judgment and decree of a court of competent jurisdiction having determined and adjudicated that the plaintiff below had no title to the lot, we fail to see how any fraud could be perpetrated.
The judgment of the court below should be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
The contention of the minor, Charles McLean, through his guardian ad litem, is, that the amended petition did not state facts sufficient to give the district court jurisdiction of the subject-matter of this action, because the statutes of the state provide full and complete remedies in the probate court for the collection of all claims against the estates of deceased persons, and therefore that the probate court of Coffey county is vested with the exclusive jurisdiction of the subject-matter. "William McLean, the father of Charles McLean, died in Montana in 1882, leaving a will, by the terms of which he devised to his son, Charles McLean, the land attached and ordered to be sold. No letters of administration on the estate of William McLean, deceased, have been issued in this state, and no executor of his will has been appointed or recognized in this state. By the common law, the heir at law or devisee is personally liable for the debts of his ancestor to the value of the property received from him. (Rawle, Cov., § 309, pp. 514, 519, 522; 2 Greenl. Ev., §§ 356, 357; 4 Bac. Abr. 410; Gen. Stat. of 1889, ¶ 2592.) The original petition is essentially a bill in equity to enforce the claim and lien upon this land, and such purpose is fully shown. In Shoemaker v. Brown, 10 Kas. 390, 391, 392, it is said that—
“The courts in chancery always had paramount jurisdiction over the estates of deceased persons, and generally had jurisdiction over all trust estates. Therefore, if the district courts of this state have full chancery powers in this respect, then they must have jurisdiction in cases of this kind. . . . The mere giving of jurisdiction to one court does not show that it must be exercised exclusively by that court. The constitution gives to the supreme court original jurisdiction in quo warranto, mandamus, and habeas corpus, (art. 3, § 3,) and also gives to the probate courts original jurisdiction in habeas corpus, (art. 3, § 8,) but still it has never been supposed that either of these courts had exclu sive original jurisdiction in any of these matters, for the legislature has given such jurisdiction also to the district courts. . . . We think it could not have been intended by the legislature to limit in any respect the jurisdiction of the district courts by passing the acts conferring certain jurisdiction upon the probate courts. It was simply intended to confer such jurisdiction upon the probate courts, and to leave the other courts to exercise just such jurisdiction and powers as the other statutes had given or should give to them. The act concerning executors and administrators shows this. Sections 83 and 86 of said act show that it was not the intention of the legislature to confer upon probate courts exclusive original jurisdiction in suits against estates.”
This case is not like Fox v. Van Norman, 11 Kas. 214. In that case it was attempted to personally charge the widow of her deceased husband as an executor de son tort with the liabilities which attached at common law. This it was held could not be done under the statute.
It is not shown or claimed that there were any other debts against the estate of William McLean, deceased, and the property attached is the only property of the decedent within this state. After the attachment, the action was in the nature of a proceeding to subject the land of the decedent within this state to the payment of the claim # ^ A J stated in the petition j therefore, in the absence of any administration, we cannot perceive any good reason for holding that the district court had no jurisdiction to hear and determine the subject-matter before it. “ Generally, while the estate is in the course of settlement in the probate court, the district court will not exercise its jurisdiction, and this for the reason that the jurisdiction of the district court in such cases is equitable only, and the parties have a plain and adequate remedy in the probate court.” (Gafford v. Dickinson, 37 Kas. 290; Kothman v. Markson, 34 id. 550; Stratton v. McCandless, 27 id. 306; Collamore v. Wilder, 19 id. 67; Johnson v. Cain, 15 id. 532.) The estate of William McLean, deceased, was not in the course of settlement in the probate court when this action was brought.
The next contention is, that the deed from William Me- Lean to Mehitable S. Webster is not a deed of general warranty, and, farther, that plaintiff below was never evicted from the land described in the conveyance to her. The warranty in the deed is in these words:
“And the said party of the first part and his heirs, the said premises in the quiet and peaceable possession of the said party of the second part, her heirs and assigns, against the said party of the first part, his heirs and assigns, and against all and every person and persons whomsoever lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend.”
This is a warranty of peaceable possession, and was broken by an eviction under a paramount title. The land was sold an(i conveyed on the 7th day of December, 1866, un(]er proceedings to foreclose a mortgage dated the 9th of September, 1859, which was prior to the deed from William McLean to Mehitable S. Webster, of the 24th of September, 1861; therefore the plaintiff below could not redeem except by paying the prior mortgage lien thereon. Under this lien she was deprived of all title, and a breach of the warranty in the deed occurred.
The other contention is, that the trial court erroneously received in evidence several records from the office of the register of deeds of Coffey county to prove conveyances of the land deeded by McLean. It is urged that these records ought not to have been received in evidence until it was shown that the original conveyances were not in the possession or under the control of the plaintiff below. (Civil Code, §§372,387a; Gen. Stat. of 1889, ¶¶ 1136, 1137.) The deed from William McLean to Mehitable S. Webster, of the 24th of September, 1861, was a part of the amended petition, and as the answer was a general denial only, and not verified, its execution was admitted. The other records received in evidence were written instruments authorized by the statute to be recorded in the office of the register of deeds, the originals of which did not belong to plaintiff below. They hac| been executed to adverse or opposing parties. The presumption is that they were not in her possession or under her control. As nothing appears in the record to the contrary, the court committed no error in permitting the copies in the office of the register of deeds to be received in evidence.
Other matters are discussed in the brief, but they are unimportant and not even prejudicial.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Strang, C.:
This was an action for'replevin for seventy-seven tons of zinc ore. The defendant claims to have purchased the ore from Aldrich and Fuller, in May, 1886. The plaintiff was deputy sheriff of Cherokee county, and had in his hands an execution in favor of O. T. Street, against Aid-rich and Fuller, which he levied on the ore as the property of said Aldrich and Fuller. The defendant demanded the ore of the plaintiff, and on his refusal to return it to her, commenced this action to recover possession of it. At the January term, 1887, the cause was tried by the court and a jury, resulting in a verdict and judgment for the plaintiff for $924. A motion for a new trial was overruled.
The first error complained of is the action of the court in refusing to suppress the deposition of Joel Bacon. The first objection to the deposition is, that it was not properly indorsed and transmitted by the officer taking it. The indorsement on the envelope is sufficient. It gives the title of the case, shows in whose behalf the deposition is taken, the name and character of the officer taking the same, that it was sealed up by the officer who took it, and it is addressed to the clerk of the district court of the eleventh judicial district, Columbus, Cherokee county, Kansas. ( Whittaker v. Voorhees, 38 Kas. 71.) The certificate which is complained of is in due form and sufficient in substance.
Complaint is also made that the deposition was not begun on the day named in the notice. The notary public was present at the time and place named in the notice for taking the deposition. The attorney for the defendant appeared. Nobody appeared to cross-examine. Counsel for the defendant requested the notary to adjourn the taking of the deposition until the next day, which request was granted, and the taking of the deposition adjourned until the next day at the same place and hour. The deposition was then taken. No one appeared at this time for the plaintiff. The notary had a right to adjourn from day to day. But counsel say he did not give any reason for the adjournment, and that the statute requires that a reason should be given. It is true the notary did not say in his certificate that he adjourned to accommodate the attorney for the defendant. If he had, that would have been a compliance with the statute. He did say, however, that he adjourned at the request of the attorney for the defendant. We find no error in the ruling on the motion to suppress.
The petition contains all the necessary elements of a petition in replevin. "While the description of the property therein is not as complete as it might have been, it is sufficient. There was no dispute over the identity of the property. The petition being sufficient, the evidence of A. H. Aldrich, R. S. Fuller and Joel Bacon was properly admitted.
The plaintiff complains of the ruling of the court in excluding certain evidence of the defendant, Babb. If there was any error in the action of the court in this assignment, it was immediately cured by the court permitting Babb, in answer to the very next question, to go over the whole ground, and testify fully all about the conversation had between himself and Aldrich, which was the conversation before excluded.
Counsel for the plaintiff say the verdict and judgment are too large. The evidence of Mrs. Aldrich and the witness Fuller is sufficient to sustain the verdict. The trial court approved it, and we will not disturb it. The judgment was for the value of the ore simply, and not in the alternative. Such a verdict in replevin is irregular. But this court held, in Ward v. Masterson, 10 Kas. 79, “that it was not necessary to reverse the judgment and order a new trial; that it was sufficient to direct a modification, and that the judgment be entered in the alternative for the delivery of the possession, or in case that cannot be had, for the recovery of the value.”
In this case, the plaintiff below did not get the property on her order of delivery, and the evidence of the plaintiff shows that the property was sold by him and taken away. We do not, therefore, deem it necessary to direct a modification of the judgment.
It is recommended that the judgment in this case be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
Suit was brought by the First National Bank of Fort Scott against Golden and Lee on the following promissory note:
“Fort Scott, Kas., Oct. 7, 1887.
“Ninety days after date; we promise to pay to the order of the First National Bank of Fort Scott, Kansas, the sum of three hundred dollars, value received, payable at the First National Bank, Fort Scott, Kansas, with interest from maturity at the rate of twelve per cent, per annum. Interest payable quarterly, and if not paid when due, to bear the same rate of interest as the principal. The drawers and indorsers hereof severally waive demand of payment, protest, and notice of non-payment.
“$300. G. S. Golden & Co.”
Golden made no defense, but Lee pleaded a denial of the partnership, and that he never had executed the note nor was it executed for him by any one acting by his authority, or under his direction, and that said note was not his obligation. There was a trial by the court at which these facts were developed : Golden and Lee formed a partnership some time in August, 1887, to carry on the real-estate, loan and insurance business on commission at Fort Scott. Lee did not kno.w of the existence or execution of this note until after its maturity. The bank at the time of the making of the note did not know who composed the firm of G. S. Golden & Co., and required Golden to make a statement as to who composed the firm, and this he did in writing on the back of the note. It is claimed on this state of facts that this was merely a partnership of occupation or employment, and not a commercial or trading one, and that there was no authority, actual or implied, for the making of commercial paper in the firm-name by one member thereof. The bank introduced the evidence of several real-estate agents at Fort Scott to show that it was customary for those in that business at Fort Scott to borrow money from the banks. The primary question is whether or not the execution of this note was within the scope of the partnership. The test of the character of the partnership is buying and selling. If it buys and sells, it is commercial or trading; if it does not buy or sell, it is one of employment or occupation. (Winship v. Bank of United States, 5 Pet. 529; Kimbro v. Bullitt, 22 How. 56; 1 Bates, Partn., § 327.)
In partnerships of occupation, when one member executes a note in the firm-name, the holder must show express or implied authority from the firm to make the note, before a recovery can be had. (Smith v. Sloan, 37 Wis. 285; Judge v. Braswell, 13 Bush, 66; Horn v. Newton City Bank, 32 Kas. 518.)
In commercial partnerships a note executed by one member in the firm-name, is prima facie the obligation of the firm, and if one of the parties seeks to avoid its payment, .the burden of proof lies upon him to show that the note was given iu a matter not relating to the partnership business, and that also with the knowledge of the holder of the note. (Deitz v. Regnier, 27 Kas. 94.)
In Bays v. Conner, 105 Ind. 415, and in Smith v. Sloan, 37 Wis. 285, it is held that notwithstanding the fact that the proceeds of the note were applied to the payment of the debts of the firm, one member of a non-trading partnership cannot bind the other by the execution of a note in the firm-name; this, for the reason that there is a want of power, and the application of the proceeds is not controlling or decisive of the question of authority.
The case of Deardorf v. Thacher, 78 Mo. 128, is one in which a member of a partnership of three persons who were engaged in the real-estate, loan and insurance business, purchased of a lumber dealer quantities of lumber on the credit of the firm. The lumber was delivered by the dealer without any knowledge on his part that it was not being bought for or applied to partnership business, and that he took the note in good faith according to the credit extended. The lumber dealer brought an action on the firm note' that was executed by the member of the partnership who purchased the lumber. The other members of the firm denied under oath the execution of the note. The court held that they were not liable. The syllabus of the case is to the effect that “ The members of a firm engaged in the insurance, real-estate and collecting business, have no implied powers to bind each other by commercial paper in the name of the firm.”
The same rule has been applied to partnerships in mining in some English cases; in milling, Lanier v. McCabe, 2 Fla. 32; in establishing and carrying on water-works, 3 Barn. & Ald. 1; in gas-works, Bramah v. Roberts, 3 Bing. N. C. 963; in publishing, Pooley v. Whitmore, 10 Heisk. 629; in planting, Prince v. Crawford, 50 Miss. 344; Benton v. Roberts, 4 La. Ann. 216; in farming, Greenslade v. Dower, 7 Barn. & Cress. 635; in sugar refining, Livingston v. Roosevelt, 4 Johns. 251; in keeping a tavern, Cocke v. Bank, 3 Ala. 175; in owning a ship, Williams v. Thomas, 6 Esp. 18; in digging tunnels, Gray v. Ward, 18 Ill. 32; in carrying on a laundry, Neale v. Turlington, 4 Bing. 149; in practicing law, Hedley v. Bainbridge, 3. Q. B. 316; Garland v. Jacomb, L. R. 8 Exch. 216; Levy v. Pyne, 1 Car. & M. 453; Breckinridge v. Shrieve, 4 Dana, 375; in practicing medicine or surgery, Crossthwait v. Ross, 1 Humph. 23; Lewis v. Reilly, 1 Q. B. 349; and in keeping a store and rope-walk, Wagnon v. Clay, 1 A. K. Marsh. 257.
In addition to all this, it is expressly stated in the articles of co-partnership, that it is formed for the purpose of carrying on the real-estate, loan and insurance business on commission. It is also agreed in the articles of co-partnership, that neither of the said parties shall subscribe a bond, sign or indorse any note of hand, accept or indorse any draft or bill of exchange, or assume any other liability in the name of the firm, without the written consent of the other. These conditions, embodied in the articles, make it clear beyond all dispute that this was a partnership of occupation and employment, and not a trading or commercial one. It is said, however, on behalf of the bank, that it could not be bound by these unpublished restrictions, but if we are right in the determination of the character of this partnership, then the plain duty of the bank, when one of the parties applied to it for a loan in the firm-name, was to investigate his authority, and if investigation had taken place, knowledge of the restrictions would have followed.
It is recommended that the judgment be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
It is urged strenuously by the defendant in error that “the paper filed with the petition in error in this cause, which purports to be the proceedings of an election-contest court, and upon which the plaintiff in error relies for a hearing of his alleged grievances, is without any legal or valid authenticity or the legal attributes that entitle it to be considered by this court;” but passing over the question thus presented, and without deciding it, and to the merits of the case, and considering- “the paper filed with the petition in error” for all that it is worth, it'does not affirmatively show nor does it appear that any material error was committed either by the district court or by the contest court. This “paper” shows among other things, that Jacob B. Spidle, I. L. McCracken, and others, were competing candidates for election to the office of county commissioner from the second commissioner district of Ness county at the general election held in November, 1888; that the returns of that election from the several election boards show that the following per sons received the following number of votes for that office, to w.it:
That Spidle contested the election as between himself and McCracken; that the contest court before which the contest was tried was composed of S. E. Nicholson, probate judge, and H. M. Kelson and J. B. Berry, as the associate judges; that at the trial, ballots voted at such ■ election were introduced in evidence, which showed that the following number of votes were cast for the following-named persons, to wit:
Other evidence, however, was introduced, tending to show that the ballots cast in Franklin township had been tampered with and altered, and that the aforesaid ballots as introduced in evidence did not show the actual votes of the people in Franklin township. The finding of the contest court upon this subject is as follows:
“ The sealed envelope enveloping said ballots cast at said election at said Franklin township district, was torn open, and said ballots tampered with by some unauthorized person after said sealed envelope and ballots were filed with and in the custody of the county clerk of said Ness county, and that when said ballots were tampered with as aforesaid and by the same person, the name of the contestee, I. L. McCracken, was erased from seven of said ballots, and the name of the con-testor was written thereon instead; and the name of A. J. Walker was erased from three of the said ballots, and the name of the contestor written thereon instead; and the name of said Chas. McClandish was erased from three of said ballots, and the name of said contestor written thereon instead. . . . It is therefore considered by the court that the said ballots cast at the said election in said Franklin township on the 6th day of November, 1888, are not competent or sufficient evidence of right or title as between the said Jacob B. Spidle, contestor, and said I. L. McCracken, contestee, to said office of county commissioner. It is further considered that the poll-books and returns aforesaid of said Franklin township district are prima facie and the best evidence of right and title as between the said contestor, Jacob B. Spidle, and the contestee, I. L. McCracken, to said office of county commissioner.
“It is further considered and adjudged that said contestee, I. L. McCracken, was on said 6th day of November, 1888, at said election in the districts of Johnson, Franklin, and Highpoint townships aforesaid, and he is hereby declared, elected to said office of county commissioner for the second commissioner district within and for Ness county, Kansas, for the next regular term thereof.”
Upon these and other findings, the contest court found in favor of McCracken and against Spidle, and rendered judgment accordingly; and to reverse this judgment Spidle took the case to the district court upon petition in error, where, on May 17, 1889, the judgment of the contest court was affirmed; and to reverse the judgment of both courts, Spidle has brought the case to this court.
We think there was sufficient evidence to sustain the findings and judgment of the contest court, and no material error is shown to have been committed by such court. The court had the returns of the several election boards before it, and also what purported to be the original ballots cast 'in each township, including Franklin township; and heard all the testimony with regard to the election in Franklin township and elsewhere, and with regard to the original counting of the ballots by the election board in Franklin township; and beard evidence showing that Spidle and others were present at such original counting in Franklin township, and that such counting at that time seemed to be correct, and no objection was made thereto, and the ballots as finally presented to the contest court seemed to have been changed and altered.
That the returns of the election officers are prima faoie evidence of what they purport to show with regard to the number of the votes cast and for whom cast, has frequently been held by this court, and has been so held by every other court to whom the question has been presented, and in the absence of any contradictory evidence, they are conclusive. It has also been held by this court, in the case of Dorey v. Lynn, 31 Kas. 758, 760, and in other cases, that whenever the ballots cast at an election can be properly identified, they are the best evidence, and much better and more reliable than a mere abstract or summary of the same made by the election officers; but whenever it is shown that they have wrongfully been tampered with, as has been shown in the present case, they lose their controlling character as evidence. (Hudson v. Solomon, 19 Kas. 177, 187; Coglan v. Beard, 2 Pac. Rep. 737.)
And where there is nothing else than discredited ballots to contradict the returns, the returns will be held to be conclusive.
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
HoetON, C. J.:
The question presented in this case'is, whether the facts agreed to bring it within the decision of Board of Education v. Tinnon, 26 Kas. 1. The city of Independence, like the city of Ottawa, is a city of the second class, and our attention has not been called to any section of the statute changing the control and regulation of the public schools of cities of this class since the affirmance of the judgment in the Tinnon case. The agreed statement of facts shows that Bertha Knox and Lilly Knox, who are colored children, and respectively eight and ten years of age, reside in the second ward of the city of Independence, 130 yards from the second-ward public school building, but are compelled to attend the fourth-ward school, 2,300 yards from their home; in attending school in the fourth ward, they are required to pass near the second-ward school building. Bertha Knox belongs to the second primary grade, and Lilly Knox to the first primary grade.
At the time these' children demanded admission to the second-ward school, neither the second primary room nor the first, primary room was filled. There was room for the plaintiffs. . No white children belonging to the same grade that plaintiffs do, living in the second ward, are required by the board of education or the superintendent of the public schools to attend the fourth-ward school building, or to go to school outside of the second ward; but all of the colored children of the city, who belong to the primary and intermediate grades, are required by the board of education to attend school in the fourth ward, taught by Mrs. Clara McCord. The grammar school and high school of the city aire open to both the white and the colored children, whenever they are sufficiently advanced. These facts are sufficient to show that plaintiffs are excluded on account of their color or race from the public school of the second ward, where white children of the same age and grade are permitted to attend. The case of Board of Education v. Tinnon, supra, therefore applies. The plaintiffs attended the fourth-ward school, taught by Mrs. Clara McCord, not from choice of themselves, or their parents, but under compulsion of the board of education.
The boards of education of cities of the second class have no more right to have separate schools for white and colored children of the first and second primary grades, than they have to establish separate grammar and high schools for white and colored children. Iu Independence, the grammar and high schools are free to all, white and colored alike, but not so with the schools of the first and second primary grades. The plaintiffs are therefore entitled to the writ demanded.
It was said in the Tinnon case: “That unless the legislature has clearly conferred power upon the school boards to establish separate schools for the education of white and colored children, no such power has been conferred. Under a statute which reads, £In each sub-district there shall be taught one or more schools for the education of youth between the ages of five and twenty-one years,’ the supreme court of Iowa held that the school board could not establish separate schools for the education of white and colored children, and could not exclude colored children from attending schools established for the white children alone.”
It was further said in that case that —
“The legislature of this state has not given, or attempted to give, to the boards of education of cities of the second class, the power to establish separate schools for the education of white and colored children, and to exclude from the schools established for white children all colored children, for no other reason than that they are colored children. ... If the board has the power, because of race, to establish separate schools for children of African descent, then the board has the power to establish separate schools for persons of Irish descent or German descent; and if it has the power, because of color, to establish separate schools for black children, then it has the power to establish separate schools for red-headed children and blondes. We do not think that the board has any such power. We have conceded, for the purpose of this case, that the legislature has the authority to confer such power upon school boards; but in our opinion the legislature has not exercised or attempted to exercise any such authority.”
A peremptory* writ will be granted as prayed for, and the plaintiffs will recover their costs.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action commenced by the defendant in error in the district court of Coffey county, to recover a balance claimed to be due him in consideration of the execution of a certain note and mortgage to plaintiff in error. The plaintiff below alleged that on the 1st day of October, 1886, he executed a note and mortgage to the defendant below, for the sum of $2,500; that the note and mortgage were received and the mortgage placed on record by the loan and trust company, and it had' failed and neglected to pay the sum expressed therein, except $2,000; that it retained $500, and refused to pay that sum to plaintiff. The loan company answered that the loan was made upon a written application, which set out various terms and conditions; that $400 might be retained out of the proceeds of the loan until the frame of a dwelling intended to be erected was put up, and the insurance on the building assigned as part security for the loan; that the loan company paid the sum of $2,500 to J. W. Parker, as agent of the plaintiff below, with instructions to retain $400 until the building was up and the insurance effected; that Love afterward requested the loan company to recall the money from Parker, which was done; that the sum-of $300 was held by it and it was willing to pay said sum to the plaintiff, on the performance of the conditions mentioned, but claimed that said conditions had not been complied with. The sum of $125 was claimed as a commission for negotiating the loan. -The reply to this answer was a general denial, with a specific denial of the agency of Parker, which was properly verified. The case was tried by a jury, and resulted in a verdict and judgment for the plaintiff below, for $325. The loan company brings the case here for review.
The plaintiff below made an application to J. W. Parker, a loan agent in Burlington, for a loan of $3,000 on his farm. Parker had in his possession blank applications for loans, furnished by the Kansas Loan and Trust Company, one of which he caused to be filled out. In answer to the usual interrogatories, among other things, it was stated that the applicant wanted to build a home with the money to be obtained; the loan was to bear interest at six per cent, per annum, and the borrower was to pay six per cent, as a commission; this application was signed by the defendant in error. On the same day, Parker, the loan agent, made a report to the loan company, recommending the loan and stating, among other things^ that the applicant intended to use part of the money to build a house, and that $400 could be retained until the frame was up. This application was forwarded to the company’s office at Topeka, and considered, but the company declined to make the loan on the security offered; it proposed, however, to make the loan for $2,500 on the same security, at seven per cent, interest and five per cent, commission; this proposition was accepted, the loan negotiated, and $2,000 paid to the plaintiff below.
The real controversy in this case is, whether or not the plaintiff ever authorized the retention of any portion of the loan until the frame of a proposed dwelling was up, and certain insurance was effected for the benefit of the mortgagee, and this matter depends largely upon the question of Parker’s agency. The plaintiff below contended that Parker was not his agent, and had no authority to make the statement he did, in regard to the retention of a portion of the loan until certain conditions were complied with. The loan company, on the other hand, insisted that Parker was not its agent, but was the agent of the applicant for the loan; that after the money in controversy had been in Parker’s hands some time, plaintiff requested the company to recall it, and that it held the sum of $300, which it was willing to pay, upon the performance of the conditions mentioned. The evidence disclosed the fact that there was but one person in the loan office besides Parker and the applicant, when the application was signed, the clerk who filled out the same, a young lady by the name of Gilman. In the course of the examination of this witness, this question was asked by the attorney for the defendant below: “ What did Mr. Love agree to, if anything^ as to the retention of part of that loan?” This question was objected to on the ground that it was incompetent, irrelevant,, and immaterial, and that the writing itself was the best evidence, and the objection was sustained by the trial court. This, it is claimed, is reversible error; that the loan company should have been permitted to show by this witness just what the plaintiff below did agree to. The evidence was certainly material, as the whole question at issue depended upon the authority of Parker in the premises, and we think it was competent. The objection that the writing was the best evidence was not good, because that was the very matter in dispute. The plaintiff below claimed that he had never signed any agreement that a portion of the money should be retained, and it was certainly a vital question as to what the contract was between the parties. It is riot claimed that the application which was signed by the defendant in error authorized the loan company to withhold any portion of the money. So that threw no light upon the question; and the other statement signed by Parker, he claimed, was not his writing, and, hence, not the best evidence. We think the evidence should have been admitted.
It is unnecessary to discuss the other errors as to the instructions requested and refused, as they are substantially covered in the general charge of the court.
We recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
Upon a reexamination of the former opinion handed down, we think it necessary to correct the same so far as to eliminate therefrom all reference to any counterclaim or set-off. In the action the defendant successfully maintained the sale of the goods from her to Deford, with the right upon her part to retain the same until her interest therein was paid. She was therefore entitled to recover a judgment against the plaintiff in the alternative for a return of the property to her, or the value of her interest therein. The original opinion will be corrected accordingly.
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Opinion by
SiMPSON, C.:
At the March term, 1890, of the district court of Harper county, the appellant, James M. Beatty, was convicted of murder in the first degree, for the unlawful killing of one James W. Hutchinson. The material facts developed at the trial are, that on the morning of July 24,1889, the dead body of James W. Hutchinson was found on the floor of his house, situate in the city of Anthony. He had been killed by being struck in the back by several bullets, or pieces of bullets, that had entered his vital organs, tearing and lacerating them, producing probably instantaneous death. The shot had been fired through the south window of the room in which he had been sitting upon a chair, convenient to a table on which there was a lighted lamp. The lower half of the sash of the window had been removed, and a light screen or netting had been fastened over the opening. This netting was torn and powder burned, and the right side of the window frame was burned and blackened by powder, parts of the gun-wadding adhered to the body, and other parts were scattered around the room in which the body was found. It seems that a muzzle-loading gun had been used, and that the muzzle had been held close to the screen or netting, at the time the fatal shot was fired. The deceased had been seen and conversed with by his neighbors on the preceding evening; a light had been observed after dark in this room; an explosion as of a heavily-loaded gun had been heard by his neighbors between nine and ten o’clock the night before, and immediately after the shot the light in his room disappeared. The wife and four children of the deceased were at the time of his death absent from home, on a visit to their friends in the state of Iowa, and he was consequently occupying the house alone. Hutchinson at the time of his death was twenty-nine years old. He had been married twelve'years, and was dependent on his daily labor for the support of his family. He had been a resident of Anthony for four years, and was a quiet, inoffensive man.
The appellant, James M. Beatty, had a wife and four children. He was a section-boss on one of the railroads, and also owned a quarter-section of land in Harper county. His wife had gone to the state of Iowa in the preceding February with some of her children, and the remainder followed her in June. There is some evidence tending to show that Beatty did not intend to live with her again. After the departure of his wife, the wife of the deceased did washing, baking and mending for Beatty, and for some time in June he took his meals at the house of the deceased, still sleeping at his own. It appears from the evidence of the wife of the deceased, that the appellant talked to her several times about going to the state of Iowa with him; that he told her that he had parted with his wife forever; that her husband did not treat her right; that she had to work too hard; that if she was his woman she would not have to work so much; that he could do better by her than her husband had done; that he had furnished her money to buy tickets for her trip to Iowa; and gave her funds with which to buy a trunk and a hat; and had instructed her to tell her husband that this money was sent to her by a brother in Iowa; but the woman strongly denies that any other improper language ever passed between them, or that any improper relations existed. The killing occurred shortly after 9 o’clock p. m. ; the appellant is shown to have purchased a pistol on the 22d of July, and some musket caps; later, on the same day, he purchased powder. He was in a deep railroad cut on that day firing the pistol. On this day, the appellant boxed some of his household goods and shipped them to Iowa, and sold the balance to a second-hand dealer. On the morning of the 23d of July, he stated to a neighbor that he had stayed all night with Hutchinson, the deceased, and that Hutchinson appeared down-hearted and despondent. On the 23d the appellant was seen with an old musket that he said had not been in use for nine or ten years; he went to a hardware store and purchased a box of cartridges; the next morning this box was found in his room, ten cartridges being missing, and eight wounds were found on the body produced by bullets. Early in the morning, after the body was found, footprints were discovered leading from a railroad track toward the house of the deceased. They were first observed at a point northeast of the house; they were traced west, making a circle around to the south side of the house, the side from which the fatal shot was fired. This peculiarity was noticed in one of the tracks: the upper had been torn from the sole of the right shoe near the toe, and extending, formed a lip, which made a distinct impression at each step where the ground was soft. These tracks were again traced going west from the south side of the house of the deceased. From the length of the stride, it seemed as if the person who made the tracks had been running, and had, on reaching the railroad track west of the house, plunged over the track into a pool of water formed by an embankment, while a few feet on either side was dry and hard ground. The tracks followed neither railroad track nor street, but ran across a piece of ground from which the surface had been removed, and which, on account of a recent rain, was soft, with little pools of water scattered through it. Some of the parties who had discovered and traced these tracks observed that one of the shoes of appellant had the marked peculiarity heretofore spoken of. Later in the day his shoes were taken, compared with these tracks, and it was found that the shoes fit the tracks precisely. A shirt was found hanging behind a door in the appellant's house; it was damp, and had plainly visible the butt of a gun impressed on the left breast, as if it had been held in the act of shooting. The gun used at the time of the shooting was a muzzle-loading one, and paper had been used for wadding, and small portions of it had adhered to the body and were found scattered through the room where the body of the deceased was found. Several pieces of the wadding were collected and found to be a portion of a newspaper called the Wichita Eagle. On the day of the killing a small roll of cotton batting, around which was wrapped a Wichita Eagle of a date a year prior, was found in the house of the appellant. A portion of this newspaper had been torn away, and in smoothing and straightening these parts of the wadding found in the room of the deceased, it appeared that they were taken from the newspaper around the cotton batting. These are some, if not all, of the most important circumstances that tended to fasten the guilt on the appellant, and are a sufficient statement to afford an easy comprehension of the questions we are required to discuss and determine.
I. The first contention of the appellant that we shall notice arises on this state of facts: The appellant was arrested on the 24th day of July, 1889; his preliminary examination, lasting several days, was concluded on the 9th day of August, and on the 18th day of September the county attorney filed an information against him, charging the appellant with the killing of John W. Hutchinson. On the 2d day of October the appellant waived an arraignment and entered a plea of tCnot guilty” to said information. On the 8th day of Jauuary, 1890, the county attorney, by leave of the court, amended the information by substituting the word James for that of John, a mistake having been made in the information as to the first name of the deceased, it being James instead of John, as stated in the information. The application to be allowed to make this amendment was done in the presence of counsel for the the accused, but he was not personally present in court when leave was given and the amendment made. The journal of the court recites that at the time the amendment was allowed the trial court ordered that a copy of the amended informa tion be served on the accused, which was done on the 8th day of January, 1890, at 2:20 o’clock p.m. of said day. On the 10th day of January, 1890, at the hour of 9:30 o’clock A.M., the appellant was arraigned and required to plead to the amended information, this being less than forty-eight hours after the service of the copy. The accused, by his counsel, objected to an arraignment at this hour — 9:30 o’clock A. M. — for the reason that forty-eight hours had not elapsed since the service upon him of a certified copy of the amended information. The trial court overruled the objection, and required the accused to plead; this he refused to do, and the court ordered a plea of not guilty to be entered on his behalf. On this state of facts the appellant bases two assignments of error; the first being that it was error to grant the application for leave to amend the information without his personal presence in court; and the second is, that he could not be required to plead until after the forty-eight hours had expired from the time of the service of the certified copy of the amended information; and hence, there is no arraignment and plea to support the verdict and judgment of conviction. Section 72 of the code of criminal procedure permits an amendment to the information, either in form or substance, at any time before the defendant pleads, without leave of the court. The information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. The section further prescribes that no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. The occasion for this amendment was the discovery that a mistake had been made in the first name of the deceased; that it was James instead of John. This amendment was made on the 8th day of January, and the first trial commenced on the 10th; after it had progressed for days, the sickness of a juror caused the discharge of the jury and a continuance of the case until the March term following. At this term the trial was had from which this appeal was made.
We do not believe, under such circumstances, that the al- lowanee of the amendment was such an error, if error at all, that it affected any substantial right of the appellant. It was one of form rather than substance. It is unlike the case cited by counsel for appellant, (Nutt v. State, 63 Ala. 180,) because in that case a mistake was made in the last name of the deceased ; here it was only in the first name. The court has ample power to allow such an amendment before the trial, nor is it necessary that the accused be personally present in order to give validity to such action. Under §270 of the criminal code, as construed in the case of The State v. Myrick, 38 Kas. 238, “No person charged with a felony can be tried unless he be personally present during the trial.” This probably means during every step and stage of the trial. This amendment was not made during the trial; if it had been, a different question might have been presented. It does not seem to us, by any fair construction of our criminal code, the personal presence in court of the accused is necessary to give validity to an amendment of the information against him, when such amendment is made before, and not during the trial.
'On the other question, it appears that the defendant appeared, waived an arraignment, and entered a plea of not guilty to the original information. There is no complaint anywhere in the record that a certified copy of the original information had not been served upon the appellant for a period of forty-eight- hours before he waived arraignment and plead. The question then presented is this: "Was the amendment to the information of such a nature that a certified copy of the amended information should have been served? We have already stated that we regard this amendment one of form, rather than of substance. It was the correction of a mistake made in the first name of the deceased, and in the very nature of things it could not have resulted in misleading, surprising, or in any other manner affecting the substantial rights of this appellant. It did not change the nature of the offense, or could not in any way operate to the prejudice of the accused. It could not have been a good cause for delay, as no postponement or continuance of the cause was asked for on account of it. Hence we cannot see that a certified copy of the amended information was required to be served on the accused. It is true the court below ordered it to be served, and it may be hat this was done more as a matter of convenience to the attorneys of the accused than as a matter of right to him personally. No error is predicated on the mistrial at the January term, and as a matter of fact, the trial upon which conviction was had was not commenced until two months after the service of a certified copy of the amended information upon the accused. It is true that the trial court demanded an arraignment and plea on the amended information, but unless the amended information changed the nature of the offense charged, or departed in some other substantial or material respect from the original, so as to plainly affect some substantial right of the accused, we are of the opinion that the waiver of arraignment and the plea to'the original information is sufficient to create the issue and support the conviction.
II. The second cause of complaint is, that the trial court erred in overruling the challenge for cause made by the accused to the jurors Alphin, Kerke, Green and Ashlock. One of these jurors remained on the panel, and all the others were peremptorily challenged by the appellant, and he thereby unjustly exhausted three of his peremptory challenges. It is said that the jurors Alphin, Green and Ashlock testified on their voir dire examination that they had formed an opinion as to the guilt or innocence of the accused that would require evidence to remove. We quote the answers of Alphin to some of the questions propounded:
“ Q. Havé you formed any opinion as to the guilt or innocence of the defendant ? A. I think I have.
“Q. Have you that opinion now? A. Well, I hardly know; if what I heard should turn out to be true, yes, I have..
“Q,. Well, nothing has occurred to change your mind as yet? A. No, sir.
“Q. It will require something to change your mind? A. Why, yes, there would something new have to come up.
“Q. Different from what you have heard ? A. Yes.
“Q. Then it would require evidence, would it not, to change the opinion you have? A. I expect, if it was different from what I have heard.”
The juror Green stated that, while he had expressed no opinion, there was an impression on his mind produced from reading accounts of the murder in the newspaper, and from what he heard at the time it occurred, as to the guilt of the accused, that would require some evidence to remove. He also stated that, according to the general opinion and the press, the accused was guilty. These two men were twice challenged for cause by the accused, but each challenge was overruled, and they were finally challenged peremptorily by the accused. The degree of fixity of the opinion touching the facts in issue, as tending to disqualify the juror who entertains it, varies considerably in the reported cases. In most courts of last resort it is held that an opinion does not disqualify if it is based on rumor or newspaper statements, and the juror says upon oath that he can give an impartial verdict on the evidence. In some states this rule has become statutory. But if a juror have an opinion as to the guilt or innocence of the accused, even if based solely upon newspaper reports, so fixed as to require evidence to remove it, he is not competent, although he may believe that he can render an impartial verdict on the evidence.
It is said by Mr. Justice VALENTINE, in the case of The State v. Miller, 29 Kas. 43, that —
“Every person charged with a criminal offense, in Kansas, has a right to be tried ‘ by an impartial jury.’ (Const., Bill of Rights, §10.) Now, is a juror who possesses an opinion with respect to the guilt or innocence of the accused, and who has 'no doubt’ as to the correctness of his opinion, an 'impartial’ juror? And is a juror who, having such an opinion, and who would continue to entertain the same until it should be removed by evidence, an impartial juror? Suppose that this opinion was that the defendant was guilty: then, would it be possible for the juror to presume that the defendant was innocent, until the contrary was proved ? Would he not rather presume that the defendant was guilty, until the contrary was proved ? Section 228 of the criminal code requires that every defendant in a criminal prosecution shall be ‘ presumed to be innocent, until the contrary is proved/ Would the juror, in the case supposed, be competent under this section? Besides, § 205 of the criminal code provides that ‘ it shall be a good cause for challenge to a juror, that he has formed or expressed an opinion on the issue or any material fact to be tried/ Now, would the juror, in the case supposed, be competent under this section? But it may be said that the opinion of the juror in the present case was founded merely upon rumor. Now, there is nothing in the constitution, or in the statutes, providing, or even intimating, that a juror who has formed an opinion upon rumor only may be competent to serve in the case. It may also be said, in the present case, that the juror stated upon his voir dire that he had no bias or prejudice against the defendant, and would be governed entirely by the evidence in the case in making up his verdict, and that he believed that he could try the case impartially. The juror was probably sincere in stating this; and he probably could state the same again with the same sincerity, even though he may have heard all the evidence introduced on the trial of the cáse. Indeed, it is probable that every juror who tried the ease could honestly state, if called upon to try the case again, that he believed that he had no bias or,prejudice against the defendant, and would be governed entirely by the evidence in making up his verdict; and that he believed that he could try the case impartially. Men are seldom conscious of being biased or prejudiced, or of being in such a condition that they could not try any case impartially, and be governed entirely by the evidence introduced on the trial of the case.
“The fact, in the present case, that the juror had an opinion with respect to the guilt or innocence of the defendant, and that he had no doubt as to the correctness of his opinion, and that his opinion would remain until it should be removed by evidence, was sufficient to render the juror incompetent to serve in the ease; and we think that the court below erred in overruling the defendant’s challenge to the juror for cause.”
Exactly to the same effect are the cases of Jackson v. The State, 77 Ala. 18; Polk v. The State, 45 Ark. 67; Andrews v. The State, 21 Fla. 598; The State v. Ricks, 32 La. An. 109; Stephens v. People, 38 Mich. 739; Olive v. The State, 11 Neb. 1; People v. Carey, 96 N. Y. 376; McHugh v. The State, 38 Ohio St. 153; Frazier v. The State, 38 id. 230; The State v. Culler, 82 Mo. 623; Dejarnette v. Com., 75 Va. 867; The State v. Meaker, 54 Vt. 112.
Whenever it appears from the statements of a juror, when being examined touching his qualifications, that his mind is in such condition respecting the issue or any material fact to be proved at the trial, that it will require evidence to remove some opinion or impression that has become fixed, relating to such issue' or material fact, it cannot be said that he is an impartial juror. An impartial man — one who extends to his fellow-men the humane presumptions of the law, and keeps his mind in such condition with reference to the accused that guilt must be affirmatively and conclusively shown before he is willing to convict, is such a juror as the law contemplates, and as the .constitution and statutes of the state demand. Every person charged with the commission of a criminal offense has the constitutional right to be tried only by this class of persons serving as jurors. In this case both of the jurors Alphin and Green, having stated upon their examinations that they had an opinion; that there was an impression rest-ins’on their minds'as to the guilt or innocence © © of the defendant that would require some evi-¿|ei:)ce removej were incompetent, and it was error to overrule the challenges for cause that were directed against them.
III. The third 'cause for reversal insisted on is the error of the court in the admission of that part of the evidence of the wife of the deceased in which she related a conversation she had with Mr. A. N. Cherry, one of the attorneys of the accused. This conversation occurred in the state of Iowa, and took place while the accused was in prison at the city of Anthony. We are unable to discover any legal theory under which a conversation between two witnesses in a cause is admissible, except for the purpose of impeachment. What was said by the defendant in the jail to Mr. Cherry might be sworn to by Mr. Cherry (if it was not a professional conversation) as an admission that would bind the defendant, but we cannot understand what Mrs. Hutchinson said, that Mr. Cherry said, that the defendant said, could be received. This evidence was objected to at the time it was given, and at the conclusion of the testimony given by the woman . _ , ° n . , a motion was made to have it taken from the jury, but both objection and motion were overruled. In both instances the trial court committed grave error.
The errors noted compel a reversal of the cause, and the other questions so earnestly discussed by counsel on both sides need not now be determined, as they may not arise on another trial.
We recommend that the judgment be reversed, and a new trial granted.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by F. L. Olson against C. E. 0>rr and 0. Lasley to recover the possession of a two-ton Sternberg truck of the alleged value of $300, which he claimed was wrongfully withheld from him. In the city court judgment was given in favor of the defendants, and Olson appealed to the district court, which likewise rendered an adverse judgment.
On the trial of the case in the district court there was testimony tending to show tlíat a verbal contract was entered into between Olson, Orr and Lasley about November 1, 1912, whereby a gasoline engine owned by Orr should be placed in Olson’s truck. ■ The terms of the agreement, it is claimed, were that Olson should pay Lasley $150 when the engine was installed, and pay Orr $150 ninety days after the installation of the engine was completed. There is testimony that the contract was later varied because of Olson furnishing certain material so that he became liable to pay each of the defendants $132.50 at the times previously agreed upon. It appears that the truck was completed about February 5,1913, and it is claimed by Lasley that there was then due to him $132.50, and Orr claimed that the amount of $132.50 became due to her on April 6, 1913. Olson offered testimony tending to show that the work done upon the truck was defective and did not measure up to the terms of the agreement, and that he had been compelled to. expend considerable sums of money to remedy the defects.
It is contended that Lasley was employed by Orr to install the engine, and not by Olson, and that therefore Lasley could not obtain a lien on the truck except by an employment or the consent of Olson, the owner. It appears to be conceded that Orr could not impose a lien on the truck for the debt of Lasley without the express or implied consent "of the owner. There is testimony, however, to support the claim that Olson contracted with Lasley as well as Orr, and also agreed to pay him when the work was completed. The testimony as to the negotiations between the parties indicates that there was a tripartite contract by which Orr was to furnish the engine at a certain price, and that Lasley was to install it for an agreed sum. Both Qrr and Lasley performed work upon the truck. There is a contention that the necessity of employment of both by Olson was not fairly presented to the jury. An instruction was requested by Olson to the effect that if Olsmi was not a party to a contract with Lasley the latter would not be entitled to a lien on the truck. This instruction was not given, but the court, in one of its own construction, told the jury, in effect, that a contract between Orr and Olson and Lasley, either together or separately, was essential to a recovery by either of them. In another instruction the court called attention to the statute which provides that:
“Whenever any person shall intrüst to any mechanic, artisan or tradesman materials to so construct, alter Or repair any article of value, or any article of value to be altered or repaired, such mechanic, artisan or tradesman shall have a lien on such article, and, if the same be completed and not taken away, and his fair and reasonable or stipulated charges be not paid, may, after six months from the time such charges become due, sell the same.” (Gen. Stat. 1909, § 4808.)
The jury were told that the claims of Orr and Lasley to a lien must be established by them by a preponderance of the evidence. It appears, therefore, that the issue of whether there was a contract between Olson and each one who claimed a lien was submitted to the jury, and there is competent evidence to support the finding made by the jury.
The contention that the lien was waived by the mere stipulation that one-half of the cost of .the repairs was not to be paid until ninety days after the work was completed can not be upheld. It is argued that because the right to such a lien rests upon the right of possession, any stipulation or special contract for the delivery of possession before payment is made necessarily operates as a waiver of the right to a lien. 'Olson cites Pinney v. Wells, 10 Conn. 104, and other similar authorities in support of his contention. It was the common-law lien, which permits an artisan who alters or repairs an article of property to retain possession of it until he has been paid for the labor and material which he has expended upon it, that was under consideration in that.case. As the lien depends upon possession the surrender of possession amounts to a waiver or abandonment of the lien. It is said that this kind of lien was provided for the benefit of those with whom no contract had been made and some courts went so far as to hold that any special contract between the parties operated to destroy the lien. In the case cited, however, it was said:
“The rule may how be considered as settled, that a lien may exist, although there is a. special contract, unless there is something in that contract inconsistent with such lien, or unless it-is waived expressly, or by fair implication.” (p. 115.)
The lien claimed here, however, is a statutory lien, and while the statute is, to a certain extent, declaratory of the common law, it expressly provides- that a mechanic, artisan or . tradesman may permit the owner to take the property away without the repairs having been paid for and still retain his lien, provided he files a proper statement with the register of deeds within three days. (Gen. Stat. 1909, § 4808.) Nothing in the statute indicates that the mere’ making of a special contract between the owner and artisan will defeat a lien and it can not so operate unless the writing itself expressly or impliedly waives the lien. The statutory lien is an extension of the common-law lien, as it expressly provides that a lien may be retained after the property has been delivered to the owner upon compliance with the prescribed conditions. If the property had been surrendered to the owner without payment and without compliance with the statutory requirements, the lien would, of course, have been lost. Here, however, possession of the altered and repaired truck was not surrendered, and there was therefore no occasion for the filing of a statement with the register of deeds. After the engine was installed the truck was tested a number of times, and finally Olson proposed to accept it and pay a certain sum, which was less than the amount agreed upon, but possession was refused and the truck remained in the garage of Las-ley until it was taken under the writ of replevin. When the tests were made the owner objected to the character of the work done and the condition of the truck when it was declared to be completed, but there was no purpose on the part of the defendants to surrender the possession of the truck to the owner until payment was made, and there being no waiver of the lien, Olson was not entitled to the possession of the truck.
Whether the engine was properly installed and the work completed according to the contract was the principal subject of controversy between the parties, but that dispute has been settled by the verdict of the jury.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
Thomas Nicholson, a resident of Ohio, died in 1857. -He had been twice married. By his first marriage he had two children, William J. and Mary. By his second wife, Margaret Nicholson, he had several children, Levi, Eliza and Katherine and others. Shortly before his death, Thomas and his wife Margaret conveyed to the eldest son, William J., a tract of land in Ohio as an advancement and as his full share in the estate of his father. This- was accepted by William J.
Mary, the eldest daughter of Thomas, died in 1860, and while her stepmother. Margaret was subjected to some litigation on account of some bargain over Mary’s interest in her father’s estate, it seems to be agreed that at her death Mary still held an interest in her father’s estate; and that interest, as her estate, descended by the laws of Ohio to her brothers and sisters. Mary’s estate was never segregated from her father’s and was never administered. It remained with the estate of Thomas, her father, in the possession and control of Margaret, her stepmother and the widow of Thomas.
William entered the army, and after the civil war settled in Miami county, Kansas, in 1865. Thither also came Margaret and her children in 1867, having sold the Ohio lands comprising the estate of Thomas and incidentally the lands of Mary’s estate, and settled on a farm near Spring Hill. Before leaving Ohio the estate of Thomas was closed and the administrator discharged, and -a settlement was had with Levi and Eliza who had attained their majority. The proceeds of the balance of the property of the estate of Thomas, being the share of Margaret his widow and her other children, and including the forgotten or unconsidered estate of the deceased sister Mary, were used in the purchase of the Spring Hill farm by Margaret. As her other children attained their majority Margaret settled with them for their interest in their father’s estate. The record does not show when the youngest child became of age, but since the father died in 1857 the posthumus son, and therefore necessarily the youngest, must have attained his majority by 1877 or 1878.
Twenty years later, in August, 1898, William J. Nicholson called on his stepmother and told her that by the laws of Ohio he was entitled to the entire estate of the deceased Mary, she being his full sister; and the old lady gave William her promissory notes for $1200 and later paid him that sum in cash out of her personal estate in consideration of this claim. Final payment on these note's was made on March 5, 1900.
Until this claim of William in 1898, during the entire thirty-eight -years since the death of Mary, no claim had been made by any of the heirs for any part of Mary’s estate and Margaret had used it as her own.
In 1903 Katherine, the half-sister of William, informed William that this transaction was not satisfactory, and later, in December, 1903, Levi and Katherine called on William on behalf of their mother, and with her knowledge and approval, and demanded a return of the $1200.
William’s claim to his sister Mary’s entire estate was not well founded, and by the laws of Ohio, brothers and sisters of the half-blood share equally with those of the whole blood. It also appears that there had been a conference among the children of Margaret concerning the payment of this $1200 to William, and that they all agreed, as well as their mother, that the demand for its repayment should be made by Levi and Katherine. Payment was refused.
On August 30, 1907, suit was brought by Margaret against William for the recovery of the $1200. This record shows that'in December, 1903, Margaret had knowledge of the mistake of fact under which she had paid this money. From December, 1903, until August 30, 1907, is three years and eight months; and viewing the conduct of William in the worst possible light, an action for relief on the ground of fraud was barred by the statute of limitations. (Civ. Code, § 17,. subdiv. 3.) We are not unmindful of the pleading which recites that Margaret did not know of the mistake of fact until 1907. That pleading is not true, and her own testimony and all the evidence is to the effect that she knew it in 1903 at the time she gave her sanction to the demand of Levi and Katherine upon William for the return of the money. (Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, and cases there cited.)
Margaret Nicholson died on March 19, 1910, but in the meantime some phase of this controversy had been appealed to the supreme court, and a decision as between the original litigants thereon was handed down on July 9, 1910. (Nicholson v. Nicholson, 83 Kan. 223, 109 Pac. 1086.)
On October 3, 1910, the district court sustained a motion to revive the action in the name of Levi, Katherine, and the other heirs — not in the name of Margaret’s personal representative, the administrator. (Civ. Code, § 437.)
“The revivor was properly in the name of the administrator alone.” (Halsey v. Van Vliet, 27 Kan. 474, syl. ¶ 3.)
“A personal representative. This of course means an executor or administrator.” (O’Neill v. Douthitt, 40 Kan. 689, 694, 20 Pac. 493.)
This record shows that Margaret’s estate was then in the hands of an administratrix, and she was the personal representative in whose name this revivor should have been made.
On June 15, 1911, a supplemental petition was filed in behalf of the heirs, suggesting that Margaret had held the estate of Mary as trustee, and that William J. Nicholson, the defendant) had obtained the possession of the same as trust funds of Mary’s estate in 1898, and seeking to have the $1200 decreed to be a trust in William’s hands, for their benefit. This would seem to be a departure from the issues of the original action. But laying that point aside, we fail to see- why this cause of action was not barred by the statute of limitations. The record is not clear whether it was filed April 29, June 15, or June 16, 1911, but at best it was' full twelve years after the action of William in demanding and receiving the money from his stepmother, and at least over seven years since Margaret, Levi, Katherine and the others had demanded its return. William’s conduct in seeking and obtaining the money • in 1898 and his refusal to return it in 1903, with the full knowledge of all the interested parties from the latter date, was such a denial of the trust character of the money that they should have brought their action setting up the trust and his repudiation of it within the statute of limitations. This the heirs did not do. (Kahm v. Klaus, 64 Kan. 24, 67 Pac. 542; Cooley v. Gilliam, 80 Kan. 278, 102 Pac. 1091.)
On July 26, 1911, at the conclusion of plaintiffs’ evidence, defendant interposed a demurrer to the evidence, and the plaintiffs asked and obtained leave to dismiss their action without prejudice, and the cause was dismissed.
On the same day, July 26, 1911, a new action was filed in the names of- the heirs and Mrs. S. C. Fairchild (Katherine), as administratrix, against William J. Nicholson, which set up with much detail all the foregoing pertinent facts, and emphasizing the point that Margaret did not learn what was the Ohio law of descents and distributions until January, 1907, and alleged a confidential relationship between Margaret and William as stepmother and stepson, mentioning her advanced age of eighty-four years, and praying that William be required to account to the administratrix and the heirs for the $1200 and interest at six per cent since 1898.
William, the defendant, died on November 19, 1911, and the plaintiffs obtained a revivor against his widow and children. No administrator of William had been appointed in this state, he having removed to California some time before his death. Whether that was proper need not be decided.
In the brief of counsel for appellees this apparently complex proposition is reduced to very simple terms:
“There is but one cause of action stated in the petition, viz: The recovery of a certain fund, the proceeds of the sale of a certain share of the real estate.owned by Thos. Nicholson in Noble County, Ohio, at the date of his death in 1857; that share being the part that his daughter Mary inherited as one of his heirs. The recovery was sought by the plaintiff, Margaret Nicholson, who had been in possession of it and who had paid it to the defendant W. J. Nicholson; both those persons died during the time the action was pending in the trial court and revivor had been had in the names of the brother and sisters of Mary as plaintiffs and against the children and widow of the defendant. It is elementary that the beneficiaries of a trust may join in a suit to recover the fund.”
The case was tried to a jury. The court propounded thirteen special questions on its own behalf, thirty special questions asked by appellant and twenty-nine special questions asked by appellees. Afterwards the court set these findings aside so far as they conflicted with some twenty-two new findings of its own, and gave judgment on the evidence against Huldah J. Nicholson, the widow of William J. Under the pleadings and the evidence, this result can not stand.
Viewed from the three main angles at which at one time and another this action has been threshed out— as an action for the recovery of money paid by mistake ; as a suit to declare a trust; and as an action for an accounting and reciting the earlier steps in the litigation wherein it was sought to recover this $1200 as money paid by mistake and later as a trust fund; or the still simpler case stated by appellees as above quoted, the bar of the statute of limitations had fallen, and to our minds that statute was enacted to prevent just such a case as this; and the court orders that it be reversed and remanded with instructions to sustain the demurrer to plaintiffs’ evidence filed on behalf of Huldah J. Nicholson.
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The opinion of the court was delivered by
Johnston, C. J.:
Florence Estella Wade brought this action against The Empire District Electric Company to recover damages for the death of her husband, John Wade, because of the alleged negligence of the company. To her evidence the court sustained a demurrer, and being overruled in her motion for a new trial she appeals.
Plaintiff, basing her action upon the statutory provisions of the state of Missouri, alleged, substantially, that John Wade was by occupation a mover of houses and mining derricks; that on September 17,1913, while engaged in moving a derrick on a highway from a place in Jasper county, Missouri, known as Tan Yard Hollow, to Galena, Kan., he came in contact, with certain uninsulated and heavily charged electric wires owned and operated by the defendant, and was electrocuted;' that the defendant was negligent in not having the wires insulated and in permitting them to.be improperly arranged and hung so low over the highway that a person engaged in a legitimate business and making a proper and common use of the highway would come in contact with them; and that because of this negligence her husband came to his death. She further alleged that the highway was a public one and had been so used for more than five years, and that during that time many derricks, similar to the one with which the deceased was working, had been moved along the highway. Plaintiff also alleged that the derrick, when loaded upon the wagon, was about twenty-one feet high; that the wires of defendant were only about nineteen feet above the ground; that her husband, not knowing that the wires carried a high voltage of electricity and were dangerous, climbed the derrick for the purpose of lifting the w'res no and over it, and while l’fb'ng them he slipped and fell upon the wires, receiving an electric shock which caused his death. Damages in the sum of $10,000 were asked. To plaintiff’s petition the defendant pleaded contributory negligence. On the trial of the case evidence was offered tending to prove that the height of the derrick, as loaded upon the wagon, was about twenty-one feet; that the wires were about nineteen or twenty feet above the ground — some witnesses placed them as low as seventeen feet — and therefore were at least from one to two feet lower than the top of the derrick; and that the wires carried a current of electricity of about 5500 volts. There was some evidence of the impracticability of insulating the wires and evidence that it could be done at an expense of forty cents a foot, and it was further in evidence that Wade asked one of the men who was with him to climb the derrick and lift the wires, but he refused, and Wade then climbed the derrick for that purpose. As he was climbing it he was cautioned by his brother to be careful, it appears, and he replied that he had handled hundreds of such wires. Testimony was introduced that after Wade reached the top of the derrick he lifted one wire, then asked that the derrick be moved ahead a little to the next wire, and he took hold of that wire, but it was drawn so tight he could not lift it, and he asked them to back up, and as they did so and while he was lifting that wire they heard him exclaim, “Oh,” and, looking up, they saw him lying on the wires apparently lifeless. In the course of three or four minutes, it appears, the wagon and derrick were moved and Wade fell to the ground, and was then found to be dead. Efforts made to resuscitate him were unavailing. It was shown that Wade had been engaged in moving derricks and houses for over twelve years in that region and that many wires were strung there. Evidence was also offered tending to show that the wires in question were about the size of telephone wires, many of which were strung along and over the highway; that there was nothing about them to show that they were heavily charged with electricity; and, further, that Wade was uneducated and had given no attention to the study of electricity, and was ignorant of the dangers of the electric current. Defendant demurred to the evidence of the plaintiff, and the court sustained the demurrer on the ground that Wade was guilty of contributory negligence. Plaintiff then moved for a new trial, and this being denied she now appeals.
It is here complained that the trial court committed error in sustaining the demurrer to plaintiff’s evidence, in holding as a matter of law that Wade was guilty of contributory negligence. -Electric companies that use the highways and employ so dangerous an agency as electricity for their own private advantage are required to exercise the highest care in constructing and maintaining their poles, wires and appliances so as to avoid injury to those using the highway for work, business or pleasure. (Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807, and cases cited.) In Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778, it was decided that:
“It is the duty of an electric light and power company having wires charged with a high voltage of electricity suspended upon poles across a street in a city, upon which street the moving of a building of greater height than the wires is reasonably to be anticipated, to insulate the wires at such crossing or to take such other precautions as are necessary to protect any person who is liable to be upon such building and to be brought in contact with such wires.” (Syl.)
In that case a recovery was sought for the death of a house mover who came in contact with uninsulated wires that were strung across a street about eighteen or twenty feet from the ground. The house which they were moving along the street was higher than the wires, and the deceased went up on the house to attend to the wire's, and he either seized or fell across the wires, which were charged with 2300 volts, and his death was instantaneous. This court approved an instruction given on the theory stated, and added that the trial court “submitted to the determination of the jury, as a question of fact, whether under all the evidence in the case the defendant was guilty of negligence, and whether the deceased was guilty of contributory negligence, and by its instructions told them that if under all the facts of the case persons were likely to come in contact with these wires, carrying the high voltage shown by the evidence, the defendant was under obligation to have the wires insulated so that injury would not result therefrom. If, on the other hand, the deceased knew of their dangerous character, and so knowing purposely came in contact with the wires, he was guilty of contributory negligence.” (p. 73.) The defendant in using wires carrying a dangerous current was bound to know the extent of the danger, and it being the duty of the defendant to exercise the utmost care practicable to prevent injury to those who rightfully and lawfully pass along the highway where the wires cross by insulation or the taking of such other precautions as are reasonable and practicable it was incumbent on the defendant to take them. Some of the witnesses said that the insulation of these high-voltage wires would be so expensive as to be prohibitive. Others testified that the wires could be insulated at the crossing without great expense as it could be done for forty cents a foot. Whether it is practicable to insulate even at crossings is a question upon which persons appear to differ. It has been held, however, that a corporation maintaining dangerous electric wires will not escape liability on the ground of the expense of exercising a reasonable care by insulation or otherwise to prevent accidents reasonably to be apprehended by those lawfully coming near the wires. (Braun v. Buffalo General Electric Co., 200 N. Y. 484, 94 N. E. 206, 34 L. R. A., n. s., 1089.) In a case where wires were strung across a highway and one who was moving a hay derrick came in contact with the wires and received injury the matter of expense of taking precautions for'the protection of travelers was under consideration and the court held that:
“It would have been but a small item of expense to defendant to have placed its wires high enough above the road to have eliminated all probability of danger to persons traveling on the highway, and, if it neglected this precaution to the injury of a citizen, the courts will not search for technical reasons to protect it from the consequences of its carelessness.” (Greenwood v. Eastern Oregon Power Co., 67 Ore. 433, 442, 136 Pac. 336.)
The highway in question is in a mining district and the moving of derricks and mining rigs of varying heights along the highway is common. Many of these structures, as well as houses, so moved are more than nineteen feet high, which is approximately the height of the wires in question, and so whether the defendant should have anticipated that a person following his usual and rightful occupation might accidentally or otherwise come in contact with the dangerous wires is a question upon which the parties divide. In a case arising, as did the present one, from a derrick having come in contact with electric wires the court said:
“It was clearly its duty to have used every reasonable precaution to raise and keep its high power transmission wires sufficiently high above ground for the safe passage of such structures as the plaintiff was engaged in moving at the time and at the place he was injured. Such structures were common to that locality. It was not of unusual height and its passage along the highway and over the bridge was to be expected at any time.” (Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 833, 837, 124 C. C. A. 35.)
In Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778, it was said that:
“If from all the circumstances the defendant .had reason to apprehend that the building would be moved under the wires where the accident occurred, it was its duty, knowing its wires to be highly charged with electricity, to have such wires at the street crossing insulated, or to take such other precautions as might be necessary to protect anyone who might be likely to be upon such. building from contact with or injury from such wires.” (p. 73.)
It is said to be practicable to place these dangerous wires at such a height as would allow the passage of derricks and like structures and that many of the high-voltage wires have been so placed. In view of the high degree of care required of those transmitting this dangerous agency, the position and the condition of the wires and of the use made of the highway it became a question of fact for the determination of the jury whether or not the defendant was negligent. Other authorities which tend to support the view that there was a basis for submitting the question of the defendant’s negligence to the jury are: Rambo v. Electric Co., 90 Kan. 390, 133 Pac. 553; Leavenworth Coal Co. v. Ratchford, 5 Kan. App. 150, 48 Pac. 927; Card v. Wenatchee Valley Gas & Elec. Co., 77 Wash. 564, 137 Pac. 1047; Mangan's Adm’r v. Louisville Electric Light Co., 122 Ky. 476, 91 S. W. 703, 6 L. R. A., n. s., 459, 29 Ky. Law Rep. 38; Fitzgerald v. Edison Electric Co., 200 Pa. St. 540, 50 Atl. 161, 86 Am. St. Rep. 732; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S. W. 654; Ryan v. St. Louis Transit Co., 190 Mo. 621, 89 S. W. 865, 2 L. R. A., n. s., 777; Byerly v. Light, Power & Ice Co., 130 Mo. App. 593, 109 S. W. 1065; Lewis’ Adm’r v. Bowling Green Gas Light Co., 135 Ky. 611, 117 S. W. 278, 22 L. R. A., n. s., 1169, and Note; Clements and Wife v. Electric Light Co., 44 La. Ann. 692, 11 South. 51, 16 L. R. A. 43, 32 Am. St. Rep. 348; Hebert v. Lake Charles Ice, Light & Waterworks Co., 111 La. 522, 35 South. 731, 64 L. R. A. 101, 100 Am. St. Rep. 505, and Note.
Although the negligence of defendant is discussed at 'considerable length by counsel for both parties the trial court appears to have held that the evidence produced made a prima facie case of negligence against the defendant. -Its written opinion, which is included in the abstract, proceeds upon the theory that there was some evidence to sustain the charge that the defendant was negligent but that a recovery could not be had because plaintiff’s testimony showed that Wade was himself guilty of negligence. The court said:
“In this case when the deceased moved up there he must have seen that the wires had been insulated; that they were bare in a great many places. This instead of being a notice of safety, was a warning of danger, and if, under those circumstances he lifted those wires out of the place in which they had been placed and were being used, for a distance of two or three or four feet, and then lifted another wire of the same character, and these wires came in contact with each other, he was guilty of negligence which would preclude him from a recovery in this case.”
On the evidence can it be said as a matter of law that Wade was guilty of contributory negligence? If the facts are not in dispute and but one inference can be drawn from them the question of deceased’s negligence can be decided by the court. If the facts are disputed the negligence is a question of fact for the jury, and even if the facts are undisputed, but different inferences may be drawn from-them the deceased’s negligence is still a question for the jury and not for the court. If the question whether Wade acted as a reasonably prudent man would under the circumstances in handling the wires in the effort to move the derrick along the highway is one on which reasonable minds might differ it should have been submitted to the jury under appropriate instructions. (K. P. Rly. Co. v. Pointer, 14 Kan. 37; Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136; Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621.) If Wade knew or was chargeable with knowledge that the wires were carrying a deadly or dangerous current of electricity and deliberately took hold of them he would be regarded as negligent and must take the consequences of his negligence. In support of the ruling of the court it is urged that Wade had been engaged in moving houses and derricks in that vicinity for more than twelve years, where defendant had many light and power wires strung along and over the streets and highways of the district and was necessarily familiar with its system. It is said that Wade had an opportunity to know that many of the wires in the district carried dangerous currents, and also that he must have observed the difference between telephone and power wires. When he came to the wires in question Griggsby, who was an employer and not one of the moving crew and who had volunteered to assist by lifting other wires that crossed the road, declined to go up and lift these wires over the derrick, and Wade then stated that he would do it, and at that time a brother of Wade, who was present, admonished him to be careful. Wade responded that he had handled such wires many times, or hundreds of times, as some witnesses expressed it. It is further said that the wires being bare, or practically so, was some warning of danger, and that the danger was open and apparent to any ordinary observer, and yet Wade voluntarily lifted them with his bare hands. It is, therefore, insisted that he must have been conscious of the danger and that his action was necessarily negligent. On the other hand, it is plausibly urged that while Wade had been moving houses and derricks for a number of years in the district where wires were strung by the defendant, the evidence tends to show that he did not believe or know that these wires were dangerous. There is nothing to show that he had ever received a shock or that he had previously handled hot or dangerous wires. He was an uneducated man, without electrical training or experience, and certainly he acted as if he believed that these wires were of low voltage and could be safely handled. The wires were of the size and appearance of telephone wires, and upon that trip and just a short time before he and his crew had come in contact with two sets of wires which were strung across the road, and they were wires of the same size as the ones in question, and they had been lifted over the derrick without injury just as Wade undertook to lift these. They were telephone wires, and it is well known that the current ordinarily carried on such wires does not make contact with them dangerous. Why may Wade not have assumed that these were telephone wires, and under the circumstances can it be said that he did not exercise the care which men of ordinary prudence of his class who are unskilled in electricity would have exercised? Another thing that may have influenced him was the fact that he was entitled to use the highway for moving derricks. It was a legitimate use and had been continued so long in that vicinity that those stringing light and power wires were bound to recognize the use and provide for the safety of those making such use of the highway. It appears, too, that some of the large high-power wires, which were about twenty-five feet from where Wade was killed, were five or six feet higher than these small wires, and some others near that place were thirty feet above the ground. Is it an unreasonable inference that Wade supposed that defendant had taken precaution for the safety of those engaged in moving derricks and houses and had placed the dangerous wires high enough to permit the passage of such structures without obstruction or danger? May this not have been his meaning when he said to his brother that he had-lifted hundreds of wires without injury, and does not the expression indicate that he regarded the wires to be such as he had previously handled with safety? While Griggsby declined to lift the wires it may be said that he was under no obligation to do any work there. Besides, he testified that while he had said that he did not care to lift the wires that he did not say to Wade or any one else that he was afraid to go up and lift them. There is testimony that telephone wires had been repeatedly lifted by Wade, but none that he had ever handled those carrying a high voltage. A different rule is applied in the case of injury to persons untrained in electricity and those who have had experience. In Rambo v. Electric Co., 90 Kan. 890, 183 Pac. 553, where an experienced man climbed a pole near which both electric light and telephone wires were strung, but all of the electric light wires were not properly insulated, the workman undertook to pass between the electric light wires and came in contact with a defectively insulated wire and was killed. It was contended that the court should have instructed the jury that the workman was guilty of contributory negligence, but it was held that although the workman had experience in electricity and had failed to take all available measures to insure his safety, beyond doubt the question, after all, was whether or not a reasonably prudent man would have acted as he did act. It was said that fair-minded men might disagree as to the propriety of his action, and, therefore, it became a question for the jury to determine, and it was further held that he could not be charged with contributory negligence as a matter of law because he had not asked to have the electric current turned oif until his work was done. Here, Wade was inexperienced in electricity. Some of the wires were harmless and some of them were dangerous, and as the wires which killed him were similar in size and appearance to telephone wires, which were not dangerous, the question whether they were carrying a heavy or deadly current was not apparent to ordinary observation. Fair-minded men might differ as to whether a person of ordinary prudence would have done as Wade did, and hence it can not be determined as a matter of law that he was guilty of contributory negligence. Some of the authorities sustaining this view are Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Greenwood v. Eastern Oregon Power Co., 67 Ore. 433, 136 Pac. 336; Giraudi v. Electric Imp. Co., 107 Cal. 120, 40 Pac. 108, 28 L. R. A. 596, 48 Am. St. Rep. 114; Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 833, 124 C. C. A. 35; Fitzgerald v. Edison Electric Co., 200 Pa. St. 540, 50 Atl. 161, 86 Am. St. Rep. 732; Card v. Wenatchee Valley Gas & Elec. Co., 77 Wash. 564, 137 Pac. 1047; Lewis’ Adm’r v. Bowling Green Gas Light Co., 135 Ky. 611, 117 S. W. 278, 22 L. R. A., n. s., 1169, and Note.
The fact that one of the four wires had at some time been covered and the insulation had mostly worn off was, in a sense, a warning of danger to one who observed it, but it appears that the wire which had once been insulated was lifted by Wade without injury. There is no question but that there is testimony in the record from which an inference of a want of ordinary care by Wade might have been drawn by a jury, and if the jury had made a finding that Wade had been guilty of contributory negligence there would be no difficulty in finding a basis for it in the evidence. The evidence, however, fairly admits of inferences that Wade did not have knowledge of the danger, and, further, that the danger was not so apparent that it can be said, as a' matter of law, that a person of ordinary prudence would not have lifted the wires as he undertook to do. What was in the mind of the deceased at the time can not be definitely known, and there is but little in the testimony which satisfactorily shows how he regarded the wires or what actuated him in lifting them. “It has often been said that where the injured person is dead wider latitude should be allowed to the jury in passing on this question of contributory negligence, and this case seems to come well within those where it has been decided on meager evidence that the care of the deceased person was a question for the jury.” (Braum v. Buffalo General Electric Co., 200 N. Y. 484, 496, 94 N. E. 206, 34 L. R. A., n. s., 1089.)
It is contended and there is some basis for the inference that the wires could have been safely lifted if one had not been brought in contact with another, and that the bringing of the wires in contact, or the making of a short circuit, was an accident, but the decision upon the question of contributory negligence is placed on the broad ground that the case comes within the rule often stated that where the evidence is such that different minds may draw different inferences as to the reasonableness and care of the conduct of a person the court can not take the case from the jury and determine, as a matter of law, that the person was negligent.
The judgment of the district court will therefore be reversed and the cause remanded for a- new trial.
Porter, J.: dissents.
Marshall, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
The appellant, O. F. Haney, was a policeman of the city of Topeka until the change of administration following the city election in April, 1912, when he was summarily discharged by the mayor and chief of police. Invoking the provisions of the civil-service law relating to cities of the first class,Haney appealed to the civil-service commissioners, who. upon hearing, revoked his discharge and ordered him restored to his position. (Gen. Stat. 1909, § 1238.) The appellees ignored the order of the civil-service commissioners, and appellant applied for and obtained from the district court an alternative writ of mandamus directing Ids reinstatement. The mayor and chief of police filed a motion to quash the alternative writ, which motion was sustained.
So much of the civil-service act as we need to consider reads:
“The provisions of this section shall apply to all appointive officers and employes of said city, except city attorney, the members of the fire department where they have already adopted the civil-service plan, city clerk, city treasurer, city auditor, city engineer, superintendent of streets, superintendent of waterworks, secretary of waterworks, chief of police, city physician, judge of police court, superintendent of public parks, city assessor, commissioners of any kind (laborers whose occupation requires no special skill or fitness), election officials and mayor’s secretary and assistant attorney, where such officers are appointed. All officers and employes in any such city shall be elected or appointed with reference to their qualifications and fitness and for the good of the public service, and without reference to their political faith or party affiliations. Any violations of the provisions of this section shall be a misdemeanor and be a ground for removal from office.” (Gen. Stat. 1909, § 1238, sub-div. /.)
The appellees contend that a policeman is a public officer within the meaning of section 2 of article 15 of the state constitution. That section reads:
“The tenure of any office not herein provided for may be declared by- law; when not so declared such office shall be held during the pleasure of the authority making the appointment, but the legislature shall not create any office the tenure of which shall be longer than four years.”
Does a policeman hold an office created by law? The legislature has not actually descended into such details, but it has created municipalities and defined their powers, and in general terms has authorized the creation of the 'position of a policeman in the cities of this state. (Gen. Stat. 1909, § 1238, subdiv. c; Gen. Stat. 1909, § 1304.)
In many respects a policeman is a municipal officer, but in other and important respects the legislature and the courts have raised him out of the class of a mere subordinate or employee like a field man of a local department of health (Jagger v. Green, 90 Kan. 153, 133 Pac. 174), or a cell-house man at the penitentiary (Jones v. Botkin, 92 Kan. 242, 139 Pac. 1198).
A policeman is a conservator of the peace and exercises many of the functions of sovereignty, and important duties are imposed upon him by the legislature. (See Gen. Stat. 1909, §§ 982, 2832, 2881, 2882, 2894, 3884, 4368, 5077, 5111, 5139 and 5140.)
This court has frequently recognized police officers as exercising the functions of sovereignty; and being clothed with such extensive powers they must be considered public officers. (The State, ex rel., v. Hunter, 38 Kan. 578, 17 Pac. 177; Peters v. City of Lindsborg, 40 Kan. 654, 656, 20 Pac. 490; Topeka v. Kersch, 70 Kan. 840, 79 Pac. 681, 80 Pac. 29; Claflin v. Wyandotte County, 81 Kan. 57, 105 Pac. 19; Anderson v. Shawnee County, 91 Kan. 362, 137 Pac. 799.)
There is no end of authority that a policeman is a public officer. (The City of Jacksonville v. Allen, 25 Ill. App. 54; Brown v. Russell, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253; State, ex rel., v. Schram, 82 Minn. 420, 85 N. W. 155; Dempsey v. N. Y. C. & H. R. R. Co., 146 N. Y 290; 40 N. E. 867; State v. Painesville, 32 Ohio C. C. 123; Penal Code, Tex, 1895, art. 243; Proctor v. Blackburn, 28 Tex. Civ. App. 351, 67 S. W. 548.)
In Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490, it was said:
“The police officers of a city are not regarded as the servants or agents of the city; their duties are of a public nature; their appointment is made by the city as a convenient mode of exercising a function of government; their duties are to preserve the good order and provide for the safety of the people of the city, and in these duties they act as the public servants of the state under the law, and not as mere agents of the city.” (p. 656.)
A diligent search of the authorities discloses only one case under a constitutional provision like our own which is held not to apply to a policeman of a city. That case is Roth v. State, ex rel., 158 Ind. 242, 63 N. E. 460, where one section of the syllabus reads:
“The provisions of sec. 2, art. 15, of the constitution that ‘the General Assembly shall not create any office, the tenure of which shall be longer than four years’, does not apply to the office or position held by a policeman of a city.”
The opinion of the Indiana' supreme court has much to commend it; but we are impelled to a different conclusion by our own decisions distinguishing between officers and employees and the classes of public servants which may properly be placed under civil-service (Jagger v. Green, 90 Kan. 153, 133 Pac. 174; Jones v. Botkin, 92 Kan. 242, 139 Pac. 1198), and those which may not (Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207). Moreover, we must admit that the weight of authority supports the contention of appellees.
In Monette v. State, 91 Miss. 662, 44 South. 989, it was said:
“Constitution 1890, § 20, providing that no person shall be elected or- appointed to office in this state for life or good behavior, but the term of all offices shall be for some specified period, applies to municipal as well as to state and county officers and a municipal ordinance purporting to authorize the appointment of policemen during good behavior is unconstitutional and void.” (Syl. ¶1.)
In City of Houston v. Estes, 35 Tex. Civ. App. 99, 79 S. W. 848, it was said:
“Sections 26 and 26a of the charter of the city of Houston, placing the employes of the police, fire and health departments under civil service regulation and providing that they can only be discharged upon complaint for cause made to a board established for this purpose, appeal lying to the city council, held unconstitutional in so far as they fix the tenure at life upon good behavior. The constitutional term of two years will govern, subject to such regulation.” (Syl. ¶ 1.)
Houston v. Estes, supra, is specially followed in City of Houston v. Smith, 36 Tex. Civ. App. 43, 80 S. W. 1144, and City of Houston v. Mahoney, 36 Tex. Civ. App. 45, 80 S. W. 1142. Earlier Texas supreme court cases: The State v. Catlin, 84 Tex. 48, 19 S. W. 302; City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735; Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120.
In Callaghan v. McGown, (Tex. Civ. App. 1905) 90 S. W. 319, the' Texas court of civil appeals slightly alters its position, and holds that the civil-service law does cover'policemen, but only for the term of two years, which is the constitutional maximum term for any office which may be created by law.
The same conclusion is reached by noting particularly one clause of our own constitution in the section under consideration:
“When [the tenure of any office] not so declared such office shall be held during the pleasure of the authority making the appointment.”
If a policeman’s tenure of office is not fixed by the legislature, and it is not so fixed unless controlled by the civil-service law, then he holds “during the pleasure of the authority making the appointment.” There is nothing doubtful about that language. It is clear, imperative and to the point. So a policeman, being a public officer with no term fixed, holds his office at the pleasure of the authority appointing him. We confess our' disappointment at the result thus reached, and have sought with care to find a different result. If the legislature had said that police officers should be under civil-service regulations for terms of four years there would be no difficulty. The Texas court of civil appeals, in Callaghan v. McGown, supra, have apparently thought it is possible to read the constitutional provision into the Texas civil-service law, thus modifying their earlier interpretations; but it is more in harmony with our view of the subject that the legislature should make its own interpolations.
There -is an additional difficulty under our statute in reaching that conclusion. The act relating to commission government of cities of the first class (Laws 1907, ch. 114, and amendments) contains two sections which we can not ignore:
“Art. V, sec. 27. The board of commissioners . . . shall have power . . .
“Sec. 48. To provide for the removal of any elective or appointive city officer for misconduct in office.
“Art. VII, sec. 90. The board of commissioners shall have power to remove the city attorney, city clerk, city treasurer or city auditor for incompetency, neglect of duty, or malfeasance in office, upon charges preferred, after due notice in writing and opportunity to be heard in their defense. When such charges are sustained, any such officer shall be removed by resolution of the board of commissioners, passed by a vote of at least four of the members of said board, declaring that the charges preferred have been proven and that such office is vacant. But said board may in their discretion, by a majority vote of all the members thereof, remove with or without cause the incumbent of any other appointive city office or employment whatever, and may by ordinance prescribe, limit or change the compensation of such officers and employes, except that the salaries of all appointive officers shall not be increased or diminished during the term for which they are appointed.” (Gen. Stat. 1909, §§ 1243, 1264, 1306.)
The civil-service provisions were inserted in this act by the legislature of 1909 (Laws 1909, ch. 74, § 4, Gen. Stat. 1909, § 1238), but they are in pari materia and must be considered in harmony with the other statutes dealing- with this subject. (Wren & Clawson v. Comm’rs of Nemaha Co., 24 Kan. 301.)
“The general rule in the construction of a statute is that force and effect must be given to all sections of a statute, if the same can be done without destroying the effect, intent and object with which it was enacted; and all sections of the same act must be construed in harmony with each other, so that no part shall be held as superfluous.” (Wenger v. Taylor, 39 Kan. 754, syl. ¶ 1, 18 Pac. 911.)
In the state of New York, where civil-service has reached its highest development, there is a provision in the New York constitution, adopted in 1894, giving positive sanction to civil-service laws. It reads:
“Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.” (Constitution of New York, art. 5, § 9.)
It needs no comment to point out the wide difference between the Kansas and New York constitutions on the question under consideration.
From this it f ollows that a policeman is an officer, and not within the scope of the civil-service regulations, and as his term is not fixed, he holds, in conformity with the constitution, “during the pleasure of the authority making the appointment.”
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was one to quiet title. The facts were that Fanny K. Howe, owner of the land in controversy, died intestate, leaving as her heirs at law her husband, Henry H. Howe, and five children, one of whom was Ira E. Howe. To effect partition the children deeded to Henry H. Howe, who then executed and delivered to the children a deed containing the following provisions:
“This Indenture, made this 19th day of October, A. D., 1900, between Henry H. Howe a single man of Sumner county, in the state of Kansas, of the first part, and Eva C. Regan, Emma A. Allen, Eugene E. Howe, Ira E. Howe, and J. Earl Howe in the State of Kansas and territory of Oklahoma, of the second part.
“Witnesseth, that said party of the first part, in consideration of the sum of One Thousand Dollars, the receipt whereof is hereby acknowledged, do by these presents Grant, Bargain, Sell and Convey, unto said parties of the second part, their blood heirs and assigns, all the following described real estate. . . . The grantor herein expressly reserves to himself a life estate to the rents, use and occupancy of said real estate.
“To Have and to Hold the Same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining forever.
“And said grantor . . . does hereby covenant, ... to and with said parties of the second part, that at the delivery of these presents, he is lawfully seized in his own right, of an absolute and indefeasible estate of inheritance, in fee simple. . . . And that he will warrant and forever defend the same unto said parties .of the second part, their heirs and assigns.”
Ira E. Howe died leaving a will in which he devised the land to his wife, Mary Olive Howe. The blood heirs of Ira E. Howe asserted title to the land, and Mary Olive Howe brought the action to free her estate from their claims and to remove the cloud cast upon her title by the word “blood” prefixed to the word “heirs” in the granting clause of the Henry H. Howe deed. The court held that Ira E. Howe took a life estate only under the deed and rendered judgment' for the defendants. The plaintiff appeals.
The statute reads as follows:
“The term ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; and 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.” (Gen. Stat. 1909, § 1651.)
The intention of the grantor in the deed in question is to be gathered from the four corners of the instrument. So considered, the deed makes it clear that the grantor intended to make a present grant of the land to the five persons named as parties of the second part, reserving to himself a life estate. The grantees were to have power to convey but if no conveyance were made the land was to descend to their blood heirs only.
An estate tail was not created because words of procreation were not inserted in the deed.' (2 Blackstone’s Commentaries, p. 114.)
The word “blood” has a broad signification :
“Blood. Kindred; consanguinity; family relationship ; relation by descent from a common ancestor. One person is ‘of the blood’ of another when they are related by lineal descent or collateral kinship.” (Black’s Law Dictionary, title, blood.)
The very indefiniteness and generality of the term is such that the grantor could not have intended it to designate and describe certain persons who were to take as present purchasers under the deed. It merely, designated a class of heirs who were to take by inheritance from the named grantees, and consequently was a word of limitation only. Ira E. Howe bore within himself during his lifetime all his heirs of every class. When he became seized, the inheritance limited to his blood heirs vested in him and he took a fee simple and not a life estate. While the grantor could create estates in the land he could not abrogate the statute of descents and distributions.
“In creating an estate of inheritance, other than an estate tail, the inheritance cannot be restricted to a particular class of heirs. Thus an estate to one and his ‘heirs male,’ or ‘heirs female,’ would be re garded as a fee simple, the limitation to the particular class of heirs being regarded as surplusage.” (1 Wash-burn on Real Property, 6th ed., § 16B.)
William G. Hammond, Dean of the St. Louis law school and lecturer on the history of the law at several American universities, appended to his edition of Blackstone the following illuminating note bearing upon this subject:
“Although the owner in fee-simple has an absolute power of controlling his property, and can do what he pleases with it, generally speaking, there is one very important limitation upon this power.
“He cannot change the state’s law of descent, e. g., he cannot make it descend to sons only. All he can do is to give it, or rather to give particular estates in it to specified individuals during a limited period. He can give it to whom he pleases for life, or for years, with a remainder over to the grantee’s oldest son, or to any other individual, whether existing or not, if properly specified and limited.
“In this case, of course, no person can change the disposition made of it, until the last remainderman entitled to take, comes into being and into possession of the estate.
“Formerly many attempts were made by ingenious limitations to keep the property in this condition for many generations. ... It is evident that this would change the law of the state so far as this particular property was concerned, by substituting for a fee-simple an endless succession of life estates.” (2 Hammond’s Blackstone’s Commentaries, p. 203.)
The judgment of the district court is reversed and the cause is remanded with direction to quiet' the plaintiff’s title.
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover damages on account of personal injury caused by defendants’ negligence. Verdict and judgment for plaintiff, for $1200. The defendants appeal.
In his petition, the plaintiff alleges:
“That said defendants . . . were engaged in the erection of a building in the city of Haddam City . . . and . . . employed plaintiff, who is a plasterer by trade, to assist in plastering the inside of said building; . . . and . . . was, on the first day of January, 1913, engaged with others in plastering the walls of a certain room in said building which work plaintiff had been directed to do by defendants; and . . . while assisting in moving a scaffold used by himself and associates in said work, and necessary to the doing of said work, he did, without fault on his part, step and fall into a hole or opening in the floor of said room, which hole or opening had been negligently left, and allowed to be, and remain, and was then without proper or sufficient covering for the reasonable safety and protection of plaintiff while engaged in said service, as defendants well knew; that the moving of said scaffold was an incident to, and a necessary detail of, the work to which the defendants had set plaintiff as aforesaid; that when plaintiff fell, or stepped, into said hole or opening in said floor said sca'ffold, which he was assisting to carry was thereby thrown over and the heavy lumber of which it was composed fell upon plaintiff; but that his foot was held fast in said hole or opening in said floor so that he could not remove the same, all of which resulted in the breaking and bruising of plaintiff’s leg, dislocating his ankle, bruising and injuring his head and back, seriously wrenching and injuring him internally.”
Defendants’ answer was a general denial.
From defendants’ abstract, we quote a part of the evidence of the plaintiff, as follows:
“We had been working on the ceiling and were getting ready to work on the walls again; were moving the scaffold to work on the wálls; it was the sixth day that I had worked there. The scaffold stood about eight feet high with three trestles under it with plank on top about ten feet long. We were carrying the scaffold and the scaffold struck something' that stopped us; could not see back to see or tell what, and I braced myself, holding to the scaffold, and my feet slipped into a hole in the floor. My feet went into this hole-and the scaffold came right across my leg. The trestle was probably six feet in length and the board covering was about four feet wide. The boards were wet, and had water on them, and that made them heavy. There were six men carrying the scaffold. I was on the north trestle and was on the west end next to the wall. The hole in the floor was about two feet long and probably fifteen inches wide. Had not noticed it particularly, just saw the boards on there and knew they covered something. Thought the boards were nailed down. There was a little crack and my heel slipped into that crack and pushed the board back and that let my heel drop down in. This threw me off of my balance and the scaffold went over. I tried to hold the trestle up but could not and went down under the scaffold. That is the usual and customary way of moving scaffolds of that kind. Howard Hammond was in charge of the work and he said, ‘Take hold of this scaffold, boys, and let’s move it.’
“Q. ’ I will ask you if the injury, such injury as you received, was occasioned by these boards or the scaffold falling on you after your feet had become fastened between these boards in that hole? A. Yes, sir.
“I have been plastering nearly all my life and this hole was not covered in a safe and reasonable manner but should have been covered with long boards or the boards should have been nailed down to make a reasonably safe arrangement.”
The evidence of the plaintiff was closely corroborated by another witness, E. J. Whetstine.
Another witness, F. L. Larabee, testified in part as follows:
“We were going north with the scaffold and he would be the first one to cross the cold air duct. We did not raise the scaffold high enough and the back scaffold caught on a pile of lumber and threw it over. The legs of the trestle stopped and the top went on over to the north. Horine fell under the scaffold and the scaffold fell on him. He did not step in the cold-air duct. I helped take the scaffold off of him and his feet was lying on the floor with the big scaffold boards on him. There was no opening in the air duct big enough for a man’s, fqpt to get into. I helped take the boards off of Mr. Horine and when I first saw him, his foot was-not in the hole,”
The defendants demurred to the evidence. The demurrer was overruled. They elected to stand on their demurrer. The case was then submitted to the jury. The defendants claim that the demurrer to the evidence should have been sustained; that the evidence shows conclusively that the plaintiff was hurt by the scaffold falling on him, and not by his stepping into the hole. They further claim that the plaintiff assumed the risk and hazard of his occupation and that therefore the defendants were in no way liable to him for the injury sustained. No other matters are complained of or argued in defendants’ brief. There is no assignment of errors. The case was submitted to the-jury, under instructions of which no complaint is made, except in the motion for a new trial.
There was evidence tending to prove each fact necessary to establish the plaintiff’s case, and the demurrer to the evidence was for that reason properly overruled. It is true that some of this evidence was contradicted, but that contradiction could not be disposed of on a demurrer to the evidence. (Wolf v. Washer, 32 Kan. 583, 4 Pac. 1036; Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732; Croll v. Railroad Co., 57 Kan. 548, 550, 46 Pac. 972; Higgins v. Railway Co., 70 Kan. 814, 819, 79 Pac. 679.)
We can not agree with the defendants that the evidence .shows conclusively that the plaintiff was hurt by the scaffold falling on him, and not by his stepping into a hole. The evidence on this point is conflicting. The jury found in favor of the plaintiff. That finding is conclusive in this court. This principle has been adhered to so long that it seems unnecessary to cite authorities in support of it. One case is Backus v. Clark, 1 Kan. 303; another is Mason v. Harlow, 92 Kan. 1042, 142 Pac. 243. Numerous cases between these can be found.
The question of assumption of risk was likewise submitted to the jury. The pláintiff’s evidence is, that he had not noticed the hole particularly; that he had seen the boards and knew they covered soihething, but thought they were nailed down. The plaintiff had a right to presume that he had a safe place in which to work. It was proper to submit this question to the jury. The finding was in favor of the plaintiff. That finding will not be disturbed. (Railroad Co. v. Burgess, 72 Kan. 454, 83 Pac. 991; Every v. Rains, 84 Kan. 560, 561, 568, 115 Pac. 114; Sibley v. Cotton-mills Co., 85 Kan. 256, 116 Pac. 889; Wells v. Swift & Co., 90 Kan. 168, 172, 133 Pac. 732; Barnett v. Cement Co., 91 Kan. 719, 725, 139 Pac. 484; Fleener v. Packing Co., 92 Kan. 573, 575, 141 Pac. 246.)
■ Nothing sufficient to warrant this court in reversing or in any way modifying the judgment of the trial court has been shown. The judgment is affirmed.
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The opinion of the court was delivered by
Portee, J.:
The appellants sought to recover on a note for $2500, signed with the names of Albert Sar-bach and L. Sarbach’s Sons. The names were both signed by Albert Sarbach, who in his lifetime was a member of the copartnership consisting of himself and his brother, Max Sarbach. The sole controverted fact involved in the case was his authority to sign the firm name to the note. John Q. Myers, president of a bank at Holton, made the loan for the appellants, and the only question raised by the appeal involves the admissibility of certain evidence offered by the appellants which the court excluded. The appellants sought to show that Max Sarbach knew of the giving of this note, and told Myers that his brother had authority to sign the firm name. Myers was called as a witness and testified that he had no recollection of having a conversation with Max Sarbach with reference to Albert’s authority to sign the name. He testified:
“Q. After Albert Sarbach’s death, do you remember of having a talk with N. Mallinger on the street a little west of your bank, with regard to the signing of this note? A. I can’t just call to mind that conversation, but I don’t doubt but what I had a conversation with him, especially after it was learned that L. Sarbach’s Sons claimed that they were not liable on the note.”
He was then asked the following question:
“Q. . . . If, a short, time after Albert Sarbach’s death, . . . you had a conversation with N. Mal-linger and told him about the signing of this note, . . . with the firm name, and you made a statement to him with regard to what Max Sarbach knew about it, was what you told Mr. Mallinger at that time true? A. Yes, sir; any statement that I made to Mr. Mallin-ger was true, as I thought, certainly.”
Nicholas Mallinger was then called and testified that soon after Albert Sarbach’s death, he had a conversation with Myers with reference to what Max Sarbach knew about the signing of the note. He was asked to state what John Q. Myers said at that time with reference to what Max had to do with the signing of the note, and what, if any, conversation John Q. Myers said he had with Max about it. An obj ection to the question was sustained and the witness was not allowed to answer. The appellants being unable to prove that Max Sarbach authorized his brother to sign the firm name to the note, the district court sustained a demurrer to the evidence.
The question therefore is whether Mallinger’s testimony in proof of the fact was admissible. It is the contention of the appellants that this character of testimony can not be called mere hearsay; because it is the combined testimony of two sworn witnesses tending to prove a material, ultimate fact, and is admissible upon the ground of necessity as secondary evidence. We can not agree with this contention. The cases cited by counsel do not, in our opinion, sustain the theory that testimony of this character is ever admissible. The rejected testimony does not fall within any of the known exceptions to the hearsay rule.
The doctrine that original entries made by a witness are admissible as auxiliary to his evidence is said to rest upon the principle of necessity for the reception of secondary evidence, but the earlier cases held that even original entries made by a witness are not admissible unless it appear that he does not recollect the occurrence to which they relate independently of them. (Nat. Ulster County Bank v. Madden, 114 N. Y. 280, 21 N. E. 408.) But the modern rule is more liberal and lets in the testimony of both the witness and the memorandum upon proof that they were made in the usual course of business, or in conformity with the uniform and unvarying practice to make correct notes of that character (1 Wharton, Law of Evidence, § 518) ; or when the witness is able to testify that at or about the time the memorandum was made he knew its contents and knew them to be true (Wright v. Wright, 58 Kan. 525, 50 Pac. 444; Acklen’s Executor v. Hickman, 63 Ala. 494). In the former case it was held that an official court stenographer may read his notes of testimony as evidence upon a subsequent trial without testifying to an independent recollection of such testimony, if he is able to testify that he knew he had taken such testimony correctly.
In the present case, however, there was no memorandum or writing made, either by the witness whose testimony was excluded or by any other person in his presence, so that the reasons for an exception to the general rule rejecting hearsay testimony because of the reliance placed upon original entries is wanting. The rule upon which appellants rely is stated to be that where two or more persons in the whole furnish sworn testimony to the existence of a fact it is the evidence in the aggregate which is to be viewed in the testimonial light, and no part of it is hearsay.
It is hardly necessary to consider the extent or application of the rule itself, because this case does not present the question. We have not here the sworn testimony of two witnesses to the existence of a fact. As observed, Myers’ testimony is to the effect that he has no recollection of the particular conversation with Mal-linger. All we have to start with is his general statement that in any conversation he may have had with Mallinger anything said by him therein was certainly true. Any witness asked such a question will answer it in the affirmative.
Except for the failure of the appellants to establish one of the necessary links in their chain of evidence, the case of Shear v. Van Dyke, 17 N. Y. Supr. Ct. 528, cited by them, would be directly in point, and would be an authority in favor of their contention. The question in issue in that case was the number of loads of hay delivered at a particular time. The witness stated that he could not then remember the number; that he knew at the time and then told the plaintiff. Subsequently plaintiff was called as a witness and was allowed to state what the number was. It was held by a divided court that the evidence was admissible. Here, however, the foundation is lacking for the application even of the exception allowed in Shear v. Van Dyke, supra. It is not necessary, therefore, to decide whether that authority should be followed in a proper case or not. John Q. Myers did not testify that he had a conversation with Mallinger in which he told Mallinger what Max Sarbach had said. On the contrary, his testimony is that he has no recollection of such a conversation, and it is not a sufficient foundation for the introduction of such testimony to ask a witness whether or not, if he did make á statement to another witness at a certain time, he then told the truth, and this is in substance all the record shows Myers’ testimony amounts to.
A similar situation arose in the case of Clute v. Small, 17 Wend. (N. Y.) 238. The plaintiff sought to prove an admission made by the defendant to the sheriff at the time of the service of the writ, and was permitted to prove the contents of a letter written by the sheriff to plaintiff’s attorney, in which he reported the admission or statements made by the defendant. The letter being lost, the sheriff testified he could not recollect its contents nor could he recollect what the defendant had said to him when he served the writ, but that whatever he wrote was undoubtedly as stated to him by the defendant. The reviewing court held that the evidence was inadmissible, and in the opinion Cowen, J., used this language:
“The inquiry here was no more than the common one to a witness: Would you have asserted such a matter unless it had been true? and on obtaining the witness’ affirmative answer, going on to prove what he did say.” (p. 240.)
In 16 Cyc. 1198, the following rule is stated:
“Where a witness testifies that he has truly stated to a.third person of his own knowledge a fact which he has since forgotten, he thereby renders competent the testimony of that party as to what the forgotten statement actually was.”
The only authority cited in support of the text is Shear v. Van Dyke, supra, which, as before observed, was by a divided court. Another case cited by appellants is Gillotti v. State, 135 Wis. 634, 116 N. W. 252. The case itself is opposed to the contentions of appellants, although there is a dissenting opinion by three of the justices based largely on the decision of Shear v. Van Dyke, supra, which it approves and follows. The question in that case was this: The complaining witness in a prosecution for robbery testified that he described one of the robbers shortly after the offense was committed to the sheriff, who was then permitted to testify that such description was given him, and the nature of it. The majority of the Wisconsin court held that notwithstanding the preliminary statement of the complaining witness that he had given a description to the sheriff, the testimony of the latter was incompetent as hearsay.
It is well said by counsel for the appellee, “the best evidence of a conversation between Max Sarbach and Myers would be the testimony of the participants.” Since Myers testified that he had no recollection of such conversation, the only person who cpuld testify to it was Max Sarbach himself, who was not called as a witness. The leading case on the subject of hearsay testimony is said to be the opinion of Chief Justice Marshall in Mima Queen and Child v. Hepburn, 11 U. S. 290, 3 L. Ed. 348, where it was held:
“Hearsay evidence is incompetent to establish' any specific fact which is, in its nature, susceptible of being proved by witnesses who speak from their own knowledge.” (Syl. ¶1.)
Our conclusion is that the evidence was not admissible, and the judgment will be affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The appellant, Andy Chadwell, was charged and convicted of shooting and wounding Emmett Tayiah with a Winchester rifle, under such circumstances as would constitute manslaughter if the death of Tayiah. had ensued. Chadwell appeals and complains that the court misdirected the jury as to the law of the case; that the court erred in admitting evidence on the part of the state; that the court erred in refusing relief to the appellant after it was disclosed that the verdict was obtained by perjury. •
First. The instructions complained of concern the law of self-defense. They do not in any way conflict with the law of self-defense as given in The State v. Reed, 53 Kan. 767, 37 Pac. 174, and in The State v. Petteys, 65 Kan. 625, 627, 70 Pac. 588, both cases being cited by appellant in support of his contention.
Second. The evidence complained of is that of Pearl Ballieu. Her testimony, taken at the preliminary examination, was read to the jury. The appellant claims that there was not sufficient foundation laid for the introduction of this evidence. The appellant does’ not attempt to abstract the evidence on this question. The state has abstracted this evidence. This abstract shows that several days previous to the trial subpoenas were issued for witnesses, including the witness Pearl Bal-lieu, whose home had for many years been at Arkansas City, in Cowley county. This subpoena was placed in the hands of the sheriff, and a deputy sheriff, Mr. Day, attempted to serve the same. He went to the home of Pearl Ballieu, made inquiry there, and was unable to locate her. He inquired of a number of people in Arkansas City, of the police, the deputy sheriff, and failed to locate her. The subpoena was left in Arkansas City with another deputy sheriff, who made inquiry and search for the witness. For several days prior to the trial this witness continually absented herself from her home, and her mother, of whom inquiry was made, knew nothing of her whereabouts. The deputy county attorney made an effort to locate the witness by inquiry, and was unable to do so. The chief of police of Arkansas City, the sheriff of the county, the deputy sheriff at Arkansas City, and one of the constables of Arkansas City made every effort to locate the witness, but failed to do so. This was sufficient foundation for the introduction of the former testimony given by this witness. (Gilmore v. Butts, 61 Kan. 315, 318, 50 Pac. 645; Railroad Co. v. Osborn, 64 Kan. 187, 190, 67 Pac. 553; The State v. Nelson, 68 Kan. 566, 75 Pac. 505; The State v. Har mon, 70 Kan. 476, 78 Pac. 805; The State v. McClellan, 79 Kan. 11, 13, 98 Pac. 209; The State v. Stewart, 85 Kan. 404, 412-416, 116 Pac. 489.)
Third. The last contention is that the verdict was obtained by perjury. The motion for a new trial alleges, as its only ground, that the verdict was procured by false testimony, as was shown by the affidavit of Emmett Tayiah.. This affidavit is as follows:
“That he was one of the witnesses in the above-entitled action for the State; that the truth and fact is that after he and the defendant, Andy Chadwell, had had a conversation over obtaining whisky, he returned to the buggy which was occupied by W. S. Asher and Pearl Ballieu, and taking his gun from the buggy, fired one shot in the direction of the said Andy Chad-well, and that after he had fired the shot, that said Andy Chadwell shot and hit this affiant in the shoulder, so help him God.”
On the trial Tayiah had testified ■ that he did not shoot. The court heard the evidence of Tayiah and all the other witnesses on the trial, and heard the evidence in support of this motion for a new trial, and denied the motion. The affidavit, did not establish the fact that the evidence of this witness at the trial was false. Other witnesses testified concerning the shooting and corroborated the evdieiice of Tayiah given on the trial: In The State v. Mounkes, 91 Kan. 653, 138 Pac. 410, this court said: ■■ C "
“In a criminal action where it is shown on a motion for a new trial that false and perjured testimony, which the defendant had no fair opportunity to rebut at the trial, probably influenced the jury to find him guilty, it is the duty of the court to set the conviction aside and grant a new trial.” (Syl.)
In the trial of Chadwell, Tayiah was subject to cross-examination. The circumstances surrounding the shooting were the principal points of controversy. The defendant had fair opportunity to rebut the evidence of Tayiah, and all other witnesses. The court had the right to consider the evidence introduced on the trial in determining the truth of the affidavit given in support of the motion for a new trial. The State v. Mounkes, above cited, does not control in this case. If all verdicts are to be set aside when perjured testimony is given in their support, litigation will become endless. The jury found the defendant guilty on the evidence of a number of witnesses.
The judgment is affirmed.
Dawson, J., not sitting.
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The opinion of the court' was delivered by
Valentine, J.:
This was an action brought by Center township against Alexander Hunt and others for the purpose of having certain bonds delivered up, declared void and canceled, and also for the purpose of obtaining a perpetual injunction forever restraining the collection of a certain tax. The plaintiff also prayed for a temporary injunction for various purposes, among which was that the defendant Alexander Hunt, treasurer of Wilson county, should be restrained pendente lite from collecting a certain tax levied on the taxable property of said township for the purpose of raising a fund with which to pay the interest on said bonds. Said temporary injunction was granted, but afterward it was so modified as not to further restrain said treasurer from collecting said tax. It is this order modifying said temporary injunction of which the plaintiff now complains.
Was said order erroneous? This is the only question in the case. The petition of the plaintiff was verified by affidavit ; and the petition thus verified seems to have been the sole foundation upon which the plaintiff rested his temporary injunction. Was it sufficient ? Where a petition is used merely as a petition, it may sometimes be held sufficient, although its statements of the facts are so general and comprehensive as to be styled conclusions of fact, or conclusions of law. But where it is also used as an affidavit, and as evidence, as in this case, it must state the facts with all that fullness of detail required in affidavits or depositions. (Atchison v. Bartholow, 4 Kas. 124; Gen. Stat. 675, code, § 239.) Every lawyer knows the difference between the statements of the facts in a petition, and the statements of the facts in an affidavit or a deposition. In an affidavit or deposition they are stated in such minute detail as to be proof or evidence of the more general facts as they are*usually stated in a petition; and we generally call such detailed statements of the facts, evidence. In a petition, if the facts should be stated obscurely, the court upon motion of the adverse party may require that the petition be made more definite and certain by amendment. But no such practice is allowed with reference to affidavits. Hence, an affidavit must stand or fall upon the facts as it alleges them. 'If the affidavit is to be used as evidence, as in this case, and it should state the facts in such general and comprehensive terms as to be styled conclusions of fact, or conclusions of law, the affidavit would not be sufficient. Now for the purposes of this case we may admit that the petition .was sufficient as. a petition to sustain said temporary injunction ; but was it sufficient as an affidavit ? Most clearly not. It does not show that the plaintiff would be injured in the slightest particular by the collection of said tax. It does not show that any of said tax was charged against the plaintiff, or that the plaintiff was in the slightest danger of ever being compelled to. pay the least portion of the same. It is true, the petition alleges that the tax was levied “ upon the taxable property of said Center township;” but from all the allegations of the petition, it is clear beyond all doubt, that the pleader meant that the tax was levied upon all the property taxable in said township. The court below. so construed the petition; and unless it were clear that the court below erred we would not reverse its ruling. The petition does not allege that any tax was ever levied upon “the taxable property of th & plaintiff” or that the plaintiff ever owned any property. The petition simply alleges, as we have before stated, that the tax was levied “upon the taxable property of the said Center township.” Now this allegation would not be sufficient as evidence to prove that the township owned certain property upon which said tax was levied, even if it stood alone, and was not shown to mean otherwise by the other allegations. But other allegations show that this was intended to mean otherwise.
It is claimed by plaintiff that the tax is void because said bonds are void, and that said bonds are void because, issued in excess of ten per cent, of “the taxable property of said Center township.” (Laws of 1872, p. 110, §1.)' The petition alleges that the assessed value of “the taxable property of said Center township ” never exceeded $220,000, and therefore it is claimed that because more than $22,000 of bonds were issued, the whole of such bonds are invalid. Now suppose they are invalid, still the plaintiff has no right to enjoin the tax levied upon the taxable property of the various individuals of the township to pay the interest on them. If any tax should be assessed against the plaintiff, the plaintiff might then perhaps maintain an action to enjoin that tax. But it cannot maintain an action to enjoin a tax assessed against the other taxpayers of the township. One taxpayer cannot enjoin a tax levied against another taxpayer. Each taxpayer must sue for himself, either in an action brought by himself alone, or in an action brought by himself and others with like interests. (Bridge Company v. Wyandotte Co., 10 Kas. 326, 331, et seq.; Hudson v. Atchison, 12 Kas. 140, 146, et seq.) The mere fact that the plaintiff is a public corporation, is not enough to entitle it to sue for the taxpayers in such a case. There is no law making it the guardian of private rights. Besides, if it were as unfortunate in the protection of private rights as it has been in the protection of public rights, it would not be a very safe guardian. It is admitted that it has violated law, reason, and morality by issuing illegal bonds to the amount of $50,000, without any adequate consideration therefor, probably without sufficient capacity to pay them, and certainly with no intention of ever paying them. It has made promise which it never intends to fulfill, and probably could not well fulfill. We think it would be better for it to let the private individuals of the township take care of their own interests. (As to the validity of similar bonds in the hands of a bona fide holder, see Marcy v. Township of Oswego, Labette Co., Kansas, recently decided by the supreme court of the United States.) But the law of this state is such that the public cannot sue merely for the protection of private rights. (The State, ex rel., v. McLaughlin, 15 Kas. 228.) Nor can private individuals sue merely for the protection of the rights of the public. (Craft v. Jackson Co., 5 Kas. 518; Bobbett v. Dresher, 10 Kas. 9; Turner v. Jefferson Co., 10 Kas. 16; Bridge Company v. Wyandotte Co., 10 Kas. 326; Miller v. Palermo, 12 Kas. 14.) Public rights and private rights, public actions and private actions, are kept separate; and no action can be brought except by the party having a special interest in the result. ■ (Crowell v. Ward, ante, p. 60.) That is, the public must sue to protect public interests, and private individuals must sue to protect their own interests. And each must sue in his or its own name. (Crowell v. Ward, supra.) The public must sue in the name of the state, county, city, township, etc., as the case may be; and each individual must sue in his or her own name. An action cannot be brought merely for the benefit of an individual in the name of the public. (The State v. Jefferson Co., 11 Kas. 66; The State v. McLaughlin, and Crowell v. Ward, supra.) If said tax is illegal, then there can be no question as to the right of the individual taxpayers to sue separately, or jointly, as they may choose, for the purpose of enjoining the tax levied against them respectively. (Gilmore v. Norton, 10 Kas. 491; Gilmore v. Fox, 10 Kas. 509.)
It is understood that precisely the same questions are involved in the case of Cedar Township v. Alexander Hunt, and the City of Fredonia v. Alexander Hunt, as are involved in this case; and therefore this opinion is intended for each of the three cases, and the same judgment will be rendered in each of said cases.
The order of the judge of the court below modifying said temporary injunction will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution. The prosecution was commenced under § 240 of the crimes act. (Gen. Stat. 370.) This section provides, that any person who shall bet at or upon any gambling device, or shall bet upon any game played at or by means of any such gambling device, shall be deemed guilty of a misdemeanor, and be punished by fine not exceeding one hundred dollars nor less than ten dollars. The indictment in this case charges substantially as follows: The grand jurors “find that Joseph Stillwell is guilty of the crime of gambling, for that the said defendant * * * did * * * play cards for money, checks, and other valuable things, all of which is contrary to the statutes,” etc. The indictment is evidently defective. The offense intended to be charged was betting on a gambling device, or on a game played by means of such gambling device. But there is no allegation in the indictment that the cards used were a gambling device, and there is .no allegation that the defendant bet on them, or that he bet at all. Now, cards are not necessarily a gambling device. They are indeed seldom used as such, but generally they are used merely as a source of amusement. If the cards in this particular case were a gambling device, the indictment should have so alleged. (Rice v. The State, 3 Kas. 142, 169; The State v. Hardin, 1 Kas. 474.) We do not wish however to be understood as approving the case of The State v. Hardin, to the extent that it goes. Cards may or may not be a gambling device, just as they are used, and intended to be used. A person may bet on a game of cards, without betting on a gambling,device, or on a game played by means of a gambling device. Suppose that A. and B. play merely for amusement, with a deck of cards kept merely for amusement, and C. and D. bet on the game: would any one claim that C. and D. bet on a gambling device, or on a game played by means of a gambling device? And a person may play cards for money without betting on them. Suppose a person is hired to play cards for others to bet on, or for the purpose of showing his skill, or to teach others the tricks .that may be performed with cards: would he not be playing for money, or for some other valuable consideration? It is easy enough to draw good indictments; and hence it is not necessary to prosecute any person on such an indictment as the one we now have under consideration.
The judgment of the court below must be affirmed.
All the Justices concurring.
In the case of The State of Kansas, appellant, v. Alonzo Shewalter, appellee, also brought here from Greenwood district court, the following opinion was filed:
Yalentine, J.: Precisely the same questions are involved in this case as in the case of The State v. Stillwell, just decided; and hence the same judgment must be rendered in this case as in that. Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
There is but a single question in this case which requires consideration, and that is, whether a sheriff is entitled to collect mileage on tax warrants which are returned by him indorsed “no property.” This is a mere question of the construction of the statute. The sheriff can collect just such fees as the law gives him, whether in the particular case they are adequate compensation for the work done or not. He is entitled to the same fees on tax warrants as on executions. (Gen. Stat., p. 1060, § 128.) He is given for “serving and returning any writ, process, order, or notice, except as hereinafter otherwise provided, for the first person ■ 50 cents; for return of no property found, 25 cents; for every mile necessarily traveled in serving any writ, process, order, venire, or notice, 10 cents.” (Gen. Stat., p. 476, §3.) In §32, page 485, Gen. Stat., it is provided that “no officer shall receive any fees for constructive services or mileage in any case.” These, are all the provisions to which our attention is directed, or which seem to bear upon the question. And under them, we think the sheriff is not entitled to mileage where he returns the warrant “no property found.” He cannot' be said to have served the warrant when he has not found any property upon which to levy it; and mileage is only given when he has served a writ. There must be an actual service. Nothing is to be taken by construction. Service of a writ, is the actual performance of the duty commanded by it. If that duty is unperformed, there is no service. • It matters hot what has caused the non-performance, whether the negligence of the officer, or the departure of the party against whom the writ runs, or his want of property, there is still no service. Whether mileage ought to be given to encourage effort on the part of the officer, is a question for the legislature. The function of the courts is not jus dare, but jus dicere.
The judgment of the court below must be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring.
|
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The opinion of the court was delivered by
Brewer, J.:
This case was tried by the court, in the court below, on an agreed statement of facts, which may be briefly stated as follows: To aid in the construction of a mill for the manufacture of wool in the city of Neosho Falls, Woodson county, said city on the 20th of June 1872, issued and donated to R. P. & R. W. Pilling & Bro. its bonds in the sum of $11,000, in denominations of $100 each, numbered successively from 1 to 110, inclusive, payable in ten years, and bearing interest at 7 per cent, per annum, with coupons attached, numbered successively from No. 1 to 20, inclusive, payable on the first day of February and August of each year respectively. On the 30th of August 1872, said city, by ordinance duly published, levied a tax for the express purpose of providing for the payment of interest-coupons Nos. 2 and 3 of so many of said bonds as were numbered from No. 37 to No. 50, and from No. 85 to No. 110, inclusive. Between the passage and publication of said ordinance the amount of said levy was changed by the city clerk, and reduced in amount, without authority. Said levy was then transmitted by the city clerk to the county clerk, and by him charged on the tax-roll of said county, in a separate column. Between November 1st 1872, and January 15th 1873, the taxpayers of said city, without any legal process or compulsion, paid to the treasurer of said county the tax levied as aforesaid for the purpose of redeeming said coupons Nos. 2 and 3. On the 15th of January 1873, the treasurer of said county paid said tax to Hamm, who -was and is the treasurer of the city of Neosho Falls, and who now has the same in his possession and under his control. McConnell, at and before the date of said tax levy, was, and he is now, the owner and holder of said coupon No. 3, which he duly presented to Hamm on the .31st of January 1874, and demanded the payment of said money, which Hamm refused and still refuses to make, either in whole or in part. Those of said bonds numbering from No. 37 to No. 50, inclusive, were registered in the state auditor’s office August 24th 1872, and those numbering from No. 85 to No. 110, inclusive, were so registered on the 9th of October 1872.
Upon these facts the district court found for the defendant. Was there error in this? It is not disputed but that these bonds were illegal and void, as issued for a purely private purpose; but the claim is, that the taxpayers voluntarily paid this money over for the purpose of paying the coupons, and that the city treasurer has no right to detain the money and prevent the accomplishment of this purpose, and that he holds the money in trust for the owner of the coupons, and must pay it over on demand. All men are presumed to know the law, and it must be presumed that the taxpayers knew that these bonds were illegal — knew that the ordinance providing for a levy was without authority, and the tax void. And still, with all this knowledge, they each take so much money and place it in the hands of the treasurer to pay over to the holder of these coupons. It is said that this is merely the application of a familiar principle of law, that if A. hands to B. money, and requests him to pay it to C., and B. accepts the money ón that request, there is an implied promise to pay it to C., and C. can maintain an action against him for it. We are of opinion that such a principle is inapplicable to the facts of this case. We are not justified in holding that the taxpayers voluntarily paid this money over to the treasurer with the request that he pay it to the coupon-holders, nor that there was any implied promise on the part of the treasurer to pay it to anybody. The money was paid, not because they wished to pay it, but as a tax. Granted, that the tax was without legal warrant, still it had all the forms of legality. Certain instruments, in form promises to pay, had been issued by the municipality. To pay those instruments the city council, the proper authority, passed an ordinance directing the levy of a tax. The city clerk, the proper officer, transmitted this as a legal and proper levy to the county clerk. True, he reduced the amount of the levy, but whether that was known to the taxpayers or not, is not stated; and whether, if known, it would have invalidated the tax if otherwise legal, may well be doubted. The county clerk accepted the levy as legal and proper, and entered it upon the county tax-roll, and passed the roll over to the county treasurer. At the accustomed tax-paying time the taxpayers come, and finding this tax on the tax-roll, pay it. They pay it because it appears in form at least a charge against their property, and for the purpose of removing that charge. The county treasurer received it as tax-money, and as such paid it over to the city treasurer. Now, because all these parties, officers, authorities, and taxpayers erred in their judgment of the legal rights, duties, and obligations of the city, and the taxpayers, and without proof of any express request or actual wish of the taxpayers, shall it be held that-when they went through the form of paying taxes they were not paying taxes, but simply engaged in a voluntary private transaction of handing money to one private individual with the request that he pay it to another, and that the treasurer when receiving taxes as treasurer, and receiving only such moneys as appear upon his books due as taxes, is nevertheless entering into a private engagement with the taxpayer to carry out his personal wish in respect to the receipt and payment of money? The maxim, that every one is presumed to know the law, is, as every one really knows, a pure fiction. True, public policy requires its recognition, and general application; but when the question arises as to the actual state of a man’s mind, this legal fiction does not compel the court to find the fact to be what the testimony clearly shows it not to be. Here, there was no express request from the taxpayers to the treasurer to receive the money and pay it to the coupon-holders, and no express agreement of the treasurer that he would so do-; and the circumstances clearly negative any such implied request or promise. To sum the matter up, a party to whom neither the taxpayers nor the city owes a dollar asks the court to compel the official custodian of the city’s funds to pay him a portion of the money in his hands received in the form and through the processes of taxation, upon the claim that these taxpayers placed these moneys in the treasurer’s hands, and the treasurer received them upon the request on the one hand and the promise on the other to receive the moneys and pay them over to the claimant, when there is no proof of any such express promise or request, or that the parties acted otherwise than in obedience to the supposed obligations of the taxing process and official station. We see no error in the ruling of the court. Whether this money, thus erroneously paid, is the property of the municipality, or of the parties paying it to the treasurer, is a question to be decided whenever properly presented. It is enough now to decide that it does not belong to the plaintiff.
The judgment will be affirmed.
Kingman, C. J., concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action by the defendant in error to cancel a subscription for stock, and for the return and cancellation of the bonds of the county issued in payment of the stock. A demurrer to the petition was overruled by the district court, and this ruling is the matter here presented for review. We shall content ourselves with the examination of a single question, for upon that we think the ruling must be sustained. The subscription was ordered at a special session of the county board, and it is insisted that such session was not legally called, nor validly held. The facts respecting it are, as stated in the petition, and for the purposes of the demurrer admitted to be true, as follows:
“And said plaintiffs aver, that two members of said board did not request that such special session of said board should be held, nor that the same should be called by the chairman of said board; that no call for such special session was ever made by the chairman of said board; that all the members of said board were not present at such so-called special session ; that B. M. Lingo, at that time an acting and legally-elected and qualified member of said board, was absent from said so-called special session, and no notice of such special session, or of any call therefor, was given to or served upon the said B. M. Lingo, or at his residence, although, as said Railway Company and its agents then and there well knew, the said B. M. Lingo was then in said county, and resided therein with his family, and had no knowledge or notice of such intended special session, or of any call therefor; but that knowledge and notice of such intended special session was intentionally and fraudulently concealed and kept from the said B. M. Lingo by the said Railway Company and its agents; and said session was not a regular session of said board, nor was it an adjourned session from any regular session thereof, nor from any duly-called special session of said board.”
Was such session a legal one, and the acts of the two commissioners thereat binding on the county? and if not, is it estopped from asserting its illegality in this action? The statute providing for sessions of the county board is found ‘in § 13, p. 256 of the Gen. Stat. That section, after providing for the meeting of the board in regular session, adds, “and in special session on the call of the chairman, at the request of two members of the board, as often as the interests of the county may demand.” This is the only statutory provision on the subject. It does not specify whether the call shall be verbal, or in writing, how long prior to the meeting it shall be made, nor require a record to be preserved of it. And the same is true as to the request. But still it requires a “oall; ” and a call of a meeting, in the legal sense of the term, is a summons to the parties entitled to meet, directing them to meet. It involves something more than a mere purpose in the mind of the caller, or an expression of that purpose unheard, unseen, and unknown. It implies a communication of that purpose to the parties to be affected by it. How it shall be communicated, is sometimes prescribed by statute, or by by-law. It is sometimes provided that it shall be by publication in the newspaper, sometimes by printed notice served personally or at the residence, and sometimes by mere oral personal notice. But in some way or other notice must be given; and if there be no regulation as to the manner of notice, it must be personal, at least where personal notice is practicable. This is no new' question. It has arisen in respect to the sessions of common councils of cities, boards of directors or trustees of private corporations, the town meetings of New England, the meetings of members of corporations, boards of electors, etc. And there is but one uniform rule running through the authorities. In the case of Rex v. Mayor, &c., of Shrewsbury, Rep. Temp. Hard. 151, it was said by the court, that “ When the acts are to be done by a select number, notice must be given of the time of meeting, * * * and, in such case the acts of a majority would bind the whole body; or if all were present through accident, without notice, their acts would be good; but the acts of a majority, present by accident, would not be binding.” It was a saying of Lord Kenyon’s, that “special notice must be given to every member who has a right to vote.” Ch. J. Tilghman, in the case of the Baltimore Turnpike, 5 Binney, 481, said, “that when several persons are authorized to do an act of a public natnre which requires deliberation, they all should be convened, because the advice and opinions of all may be useful, though all do not unite in opinion.” In Wilcox on Munic. Corp., § 58, we find it laid down, that “all corporate affairs must be transacted at an assembly convened upon due notice at a proper time and place, consisting of a majority of the persons of each class to which the prescription or charter has confided the power.” And Selden, J., in People v. Bachelor, 22 N. Y. 128, uses this language: “ It is not only a plain dictate of reason, but a general rule of law, that no power or function intrusted to a body consisting of a number of persons can be legally exercised without notice to all the members composing such body.” Dillon in his work on Munic. Corp., § 224, lays down the law thus: “If the meeting be a special one, the general rule is, unless modified by the charter or statute, that notice is necessary, and must be personally served if practicable upon every member entitled to be present, so that each one may be afforded an opportunity to participate and vote.” See also further, King v. Theodorick, 8 East, 543; King v. Gaborian, 11 East, 77; Ex parte Rogers, 7 Cowen, 526, and note; Downing v. Rugar, 21 Wend. 178; Stow v. Wise, 7 Conn. 214; Harding v. Vandewater, 40 Cal. 77; Wiggin v. Freewill Baptist, 8 Met. (Mass.) 301. Nor is this merely an arbitrary rule, but one founded upon the clearest dictates of reason. Wherever a matter calls for the exercise of deliberation and judgment, it is right that all parties and interests to be affected by the result should have the benefit of the counsel and judgment .of all the persons to whom has been intrusted the decision. It may be that all will not concur in the conclusion; but the information and counsel of each may well affect and modify the final judgment of the body. Were the rule otherwise, it might often happen that the very one whose judgment should and would carry the most weight, either by reason of his greater knowledge and experience concerning the special matter, by his riper wisdom and better judgment, or by his greater familiarity with the wishes and necessities of those specially to be affected, or from any other reason, and who was both able and willing to attend, is through lack of notice an .absentee. All the benefit, in short, which can flow from the mutuál consultation, the experience and knowledge, the wisdom and judgment of each and all the members, is endangered by any other rule. Again, any other rule would be fraught with danger to the rights of even a majority, as, when legally convened the ordinary rule in the absence of special restriction being that a quorum can act and a majority of the quorum bind the body, it would, but for this rule, often be in the power of an unscrupulous minority to bind both the body and the corporation for which it acts to measures which neither approve of. Thus, were the body composed of twelve members, a quorum of seven 'could act, and a majority of that quorum, four, could bind the body. An unscrupulous minority of four ,by withholding notice to five, might thus bind both the body and the corporation. Reason therefore and authority unite in saying that notice to all the members to whom, notice is practicable, is essential to a legal special session.
But we are referred by counsel to that clause. in the act concerning the construction of statutes, (Gen. Stat., p. 999,) which reads, “Words giving a joint authority to three or more public officers or other persons, shall be construed as giving authority to a majority of them, unless it be otherwise expressed in the act giving the authority.” We do not see that this affects the question. Whenever there is a legal session, unquestionably a majority of the commissioners can act and bind the county. But this casts no light upon the question as to the manner of convening a legal session. It must be remembered that the powers of the county are not vested in three or more commissioners as such, but in a single board. (Gen. Stat., p. 254, § 3.) Two commissioners casually meeting have no power to act for the county. There must be a session of the “board.” This single entity, the “board,” alone can by its action bind the county. And it exists only when legally convened. Its regular sessions are fixed by law, and of them all the members must take notice. Its special sessions exist only upon call of the chairman, and that as we have seen implies notice. But again we are referred to the case of Scott v. Paulen, 15 Kas. 162, in which this court sustained the action of a county board at a session held to be a special session at which only two commissioners were present, and for which no request, no call, and no notice were shown. It will be noticed from the opinion in that case that the court reluctantly sustained the action, and considered itself as there going to the extreme limit. But two very important differences exist between that and this case. Here it affirmatively appears that no request, no call was made, no notice given, and that designedly the parties interested in and desiring the action of the board withheld notice from one member. There it was simply a presumption from the silence of the record. But chiefly, there the action of the board created no * iability, was in nothing adverse to the interests of the county, and was accepted by the people as legal. All that was done was to order a county-seat election. The proper petition was presented. If in unquestioned session, the board would have had no discretion, but would have been bound to order an election. By a majority, in apparent session, the election was ordered. The people accepted this action as valid, and generally participated in the election. Under such circumstances, when the only parties interested in and to be affected by the action, accepted it as valid, and when by it no interest or claim opposed to the county was created, it seemed just and legal to sustain the action. But in this case, by the action a great liability is attempted to be cast upon the county, adverse interests created, and the people of the county have not since that accepted the action as valid, and thus in a certain sense estopped themselves from questioning its validity. True, the people had prior thereto by a vote given authority to the board to subscribe, but this as heretofore decided simply gave the authority to the board to be exercised at its discretion. L. G. Rld. & Trust Co. v. Comm’rs Davis County, 6 Kas. 256. And this discretion was the discretion of all the members; that is, the information, experience, and judgment of all were to be exercised, and after consultation the judgment of the majority to control. Again, this action of the commissioners was taken in September 1873, and the vote was in September 1871. After remaining so long in abeyance it would seem that the authority should not be exercised without a full consultation of all the officers intrusted with the exercise of the authority. It may also be remarked, that this controversy arises between the county and the railroad company, the original parties to the transaction; that the latter is of course chargeable with notice of what actually took place therein, and was guilty as alleged of a fraudulent withholding of notice from one of the members. It cannot therefore, as against the county, invoke the aid of any principle of estoppel.
The ruling of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This is an original action in the nature of quo warranto. The action was commenced for the purpose of having the question determined, whether the plaintiff Odell, or the defendant Dodge, is entitled to the office of justice of the peace for the township of Great Bend, Barton county. This is the only question in the case. The facts upon which this question, depends are substantially as follows: Barton county was organized May 16th 1872. Great Bend township was organized May 23d, and the first election held in said county and township was on July 1st. At this election county and township officers were elected, among which were two justices of the peace for said Great Bend township, one of whom was the defendant Dodge. All these proceedings were had under the acts relating to the organization of new counties. (Gen, Stat. 249, et seq. • Laws of 1872, p. 243.) At each of the next two annual township elections held in said township, to-wit, on the first Tuesday of April 1873, and on the first Tuesday of April 1874, two justices of the peace were elected for said township, (provided of course that justices of the peace were to- be elected at such elections,) one of whom was the defendant Dodge, who each time qualified and accepted the office. No election was held in April 1875, for before that time the legislature so changed the law that the annual township election is held on the Tuesday succeeding the first Monday in November of each year. (Laws of 1875, p. 128.) At the annual township election held on the Tuesday succeeding the first Monday in November 1875, (which was also the day on which the general election was held,) four different candidates were voted for, for the office of justice of the peace for said township; and if that was the proper time for holding elections for said offices the plaintiff Odell, and one Sells, were duly elected such justices, and the defendant Dodge and the other candidate were defeated. Both Odell and Sells qualified — Sells becoming his own successor, and the county commissioners- designating Odell as the successor of Dodge, and causing a certificate to that effect to be entered in the docket kept by Dodge. (Gen. Stat. 817, § 194.) Odell then demanded the docket, books, papers, etc., pertaining to the office, and Dodge refused to give them up. Dodge claims that on July 1st 1872 he was elected for a full term of two years, less the time that had elapsed between the first Tuesday of April of that year, and said 1st day of July; that his term did not expire until the first Tuesday of April 1874, when- he was reelected for another full term, and that his second term will not expire until the holding of the annual township election for the year 1876; and therefore, that the election of Odell in 1875 was a nullity. The only defect in this reasoning is in the starting-point; but that is fatal. Dodge was not elected for a full term in 1872, but only to hold his office until the next annual township election. Section 8 of the act authorizing the election upon which the whole claim of the defendant is founded, and at which he was elected in 1872, provides that “Any person elected to a township office at the first election shall, when qualified as the law directs, continue to hold his office until the next annual township meeting, and until his successor shall be elected and qualified; and all county officers shall, in like manner, hold until the next general election, and until their successors shall be elected and qualified.” (Gen. Stat. 251.) Said §8 has been held to be constitutional and valid with reference to county officers. (Hagerty v. Arnold, 13 Kas. 367.) And hence it must also be held to be constitutional and valid with reference to township officers. For every ground upon which said section may be claimed to be unconstitutional, or invalid, when applied to township officers, may be interposed with equal or greater force when the section is applied to county officers. We suppose that it is admitted, that justices of the peace are township officers. (Const.,art. 3, § 9; art. 9, § 4; Gen. Stat. 1083, ch. 110, §§3, 4, 5.) Now the regular term of office for a justice of the peace is two years. (Const., art. 3, § 9.) And all the justices for any given township, when elected for full terms must be elected in the same year, and at the same election. That is, they must all be elected at a regular township election held in each alternate year. (Gen. Stat. 1083, § 4.) But which of the alternate years — whether the election is to be held in the even years, or in the odd years — is nowhere designated by either the constitution or the statutes. We therefore think it follows from the foregoing premises, as necessary and logical sequences, that the justices elected in Great Bend township in April 1873 were properly elected at that time; that they were then each elected for a full term of two years; that they were the first justices elected for full terms in said township; that the first Tuesday of April 1873 was the first regular election for the election of justices for full terms in said township ; and therefore, that the regular times for holding elections for the election of justices of the peace for full terms in said township has been and will be at the regular township election held every alternate year commencing in April 1873. And therefore it further follows, that the election of justices of the peace at the township election held in November 1875 was regular and valid as to time — that the plaintiff Odell was duly elected to said office, and is entitled to the docket, books, papers, etc., pertaining to the office, and that the defendant Dodge wrongfully withholds the same from him. The election for justices in said township in 1874 was a nullity, unless it was to fill vacancies. And even if it was to fill vacancies, the terms of those elected would expire in 1875. (Hale v. Evans, 12 Kas. 562.) So in any event, the election of Odell in 1875 was valid. For a further discussion as to the times when justices of the peace are to be elected, see case of Wood v. Bartling, ante, p. 109.
Judgment will be rendered for the plaintiff.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Nichols against William II. Overacker and Sarah E. Overacker on a promissory note and a real-estate mortgage executed by said William H., alone. The petition of the plaintiff undoubtedly stated a good cause of action as against said William H., but it did not state any cause of action as against the other defendant.' The petition, besides being an ordinary petition on a note and mortgage as against William H. Overacker, also alleged that the consideration for said note and mortgage was money loaned by the plaintiff to said William H. for the purpose of enabling him to purchase, and to obtain title to, the land for which said mortgage was given, and that said land was so purchased with said money. But there is no allegation in the petition as against the defendant Sarah E. The prayer of the petition was for a personal judgment against said William H. for the amount of the note, and for a further judgment against both of the defendants that said land should be sold to satisfy said personal judgment. The defendant William H. filed an answer to this petition, substantially admitting the plaintiff’s cause of action, but also pleading usury. The plaintiff replied to this answer by filing a general denial. The defendant Sarah E. did not at this time file any pleading. Said reply was filed March 28th 1873. The next term of court commenced April 7th 1873. At this term of court, and on May 2d, this case was tried, and judgment was rendered ; but all this was done in the absence of both defendants. The judgment was rendered in accordance with the prayer of plaintiff’s petition. At the next term of the court, and on August 7th 1873, said judgment was set aside. The plaintiff in error claims that the court below erred in setting aside the personal judgment rendered against William H. Overacker. We think the court did so. err. No good reason has been shown why said personal judgment was set aside, and indeed we might almost say that no reason of any kind has been given. We think said personal judgment should be restored. For the purposes of this case we shall assume that the balance of the judgment was properly set aside, although there might have been a grave question raised even as to this. Afterward the defendant Sarah E. Overacker filed an answer in the action. She admitted that said William H. executed said note and mortgage, as alleged in the plaintiff’s petition. But she alleged that said William H. and herself were husband and wife; that when said note and mortgage were executed, and since, hitherto, her husband and herself occupied said mortgaged property as their homestead, that she never joined in the execution.of said note or mortgage, or gave her consent thereto, and she denied everything in the plaintiff’s petition which she did not specifically admit, and she then closed her answer with a prayer that said mortgage be declared null and void. The plaintiff replied to this answer, admitting that the defendants were husband and wife, that said land was their homestead, and denied all the other allegations of the answer, and then prayed for a judgment as prayed for in his petition. A trial was had upon these plead ings. The parties submitted the case to the court without a jury. The parties agreed upon the evidence, and submitted it to the court; but the court, upon the objections of the defendants, held that that portion of the evidence favorable to the plaintiff was irrelevant, immaterial, and incompetent, and excluded it, to which ruling of the court the plaintiff excepted. From said agreed statement, and the pleadings, it appears that the facts are substantially as follows: On August 29th 1871, the defendants were husband and wife, occupying said land as their homestead. They had no title however to the same. And as the defendant William H. desired to obtain the title, the plaintiff on that day loaned to said William H. $210, with the understanding and agreement between the parties that said money should be used to purchase said land, and that William H. should then execute said note and mortgage to the plaintiff therefor. The' money was so used; the land was purchased with said money, and the note and mortgage were given accordingly. The note and mortgage were given for the sum of $300, due in one year, with interest at the rate of twelve per cent, per annum. The sum of $90 was added to the sum of $210 as interest for the first year, making the whole amount $300, as expressed in the note and mortgage. All this was done August 29th 1871. The defendant Sarah E. did not have anything to do with these transactions. And she never had any interest in said land except by virtue of being the wife of said William H., and an occupant of the land with him. He was the owner of the land, and held the title thereto after he purchased it with the plaintiff’s money. The court below on this second trial rendered a personal judgment in favor of the plaintiff and against the defendant William H. Overacker for the sum of $210 and costs, but rendered no judgment for a sale of the mortgaged property. On the contrary, the court rendered judgment that said mortgage was void, and that the defendant Sarah E. Overacker recover from the plaintiff her costs.
We think that the judgment of the court below was erroneous. It is true, that a mortgage given by the husband alone on the homestead for any ordinary debt, is void; and no judgment for any ordinary debt can be a lien on the ho'mestead. But we have no law which exempts premises held as a homestead from sale “ for the payment of obligations contracted for the purchase of said premises.?’ The constitution expressly says that “No property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon.” (Const., art. 15, § 9.) Of course, an obligation for the purchase-money is no more a lien on property held as a homestead than it would be upon the property if it were not held as a homestead, but it may be just as much a lien. The matter simply stated is this: There is no homestead-exemption law as against obligations contracted for the purchase-money. As to such obligations, the rule is just the same as if no exemption-law had ever been adopted. And land held as a homestead is, with respect to such obligations, governed by just the same rules as if it were not a homestead. Now, were said note and mortgage given for the purchase-money? We think they were. The loaning of the money in this case, the purchasing of the land, and the giving of the note and mortgage, were all merely parts or portions of one single and entire transaction. The different parts were not separate and independent transactions in and of themselves. The loaning of the money was not a separate and independent transaction. It was loaned for a particular purpose had in contemplation by both of the parties. It was borrowed and loaned with the intention by both of the parties that it should be used in purchasing said land, and it was so used. The borrowing and loaning of the money was simply a part of one common or general purpose, of which the purchase of the land was another part, and the giving of the note and mortgage still another part. All were parts of a general purpose, of which the main object was the purchase of said land. All were done in and about the purchase of said land, and to accomplish that purpose. And all contributed thereto. Without the money, the land could not have been purchased. Obligations of the bind we are now considering certainly come within the spirit of the provision of the constitution above quoted. The spirit of that provision is, that no man shall enjoy property as a homestead, or an improvement thereon, as against the just claims of the person who procured it for him. This is highly equitable and just. These views we think are sustained by decisions in other states under similar homestead-exemption provisions. Austin v. Underwood, 37 Ill. 438; Magee v. Magee, 51 Ill. 500; Allen v. Hawley, 66 Ill. 168; Lassen v. Vance, 8. Cal. 271; Carr v. Caldwell, 10 Cal. 380; Hopper v. Parkinson, 5 Nevada, 233; Lane v. Polier, 46 Georgia, 580; Hawks v. Hawks, 46 Georgia, 204. In this state we have no vendor’s lien created by mere operation of law. The only lien in this state, that might with any degree of propriety be called a vendor’s lien, is a lien reserved to the vendor by the parties at the time of the sale. Hence, a claim for purchase-money stands no higher than any other claim, except that as against it no homestead-exemption can be interposed. As against it, there is no homestead-exemption law.
The personal judgment in this case against William H. Overacker, for the amount of the note and mortgage, and costs, should be restored. This judgment should be declared a lien upon the mortgaged property to the extent of |210, and interest at the rate of 12 per cent, per annum from the time the money was furnished, and necessary costs of suit, and that the land be sold to satisfy such lien. The defendant William H. did not prove usury at the time the judgment was properly rendered against him, and the defendant Sarah E. did not plead it. We do not wish to be understood as deciding any question in this case except such as are expressly decided.
The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is an application for a mandamus to compel the signing of a bill of exceptions. A majority of the court are of the opinion that the application should be refused,' but they do not agree in the reasons therefor. It is useless therefore to give the separate reasons of the judges, for there is no point of law settled or decided by the judgment in this case. Foltz v. Merrill, 11 Kas. 479.
Kingman,. C. J., concurring.
Valentine, J., not sitting in the case.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by William Eastwood, the plaintiff in error, as plaintiff below, against Henry B. Carter and J. W. Cubbison, to set aside a judgment rendered against Mm in favor of Carter, and to enjoin the defendants from selling property upon an execution issued thereon. A trial was had before the court without a jury, which resulted in findings and judgment for the defendants against the plaintiff for costs of suit. A motion for a new trial was overruled ; the plaintiff excepted and presents the record to this court for review.
It appears that on the 31st day of January, 1898, Carter brought an action in the district court of Jewell county against William Eastwood for the recovery of $411.25 upon a promissory note, together with interest at ten per cent, from August 3, 1895 ; that on that date a summons, in form and substance as required by the statute, was duly issued, and delivered to the sheriff for service. The summons was indorsed as follows:
“ No. 2578. -, plaintiff, v.-, defendant. — Suit brought for the recovery of money; amount claimed, $411.25, with interest from the 3d day of August, 1895, at the rate of 10 per cent, per annum.
J. M. Livengood, Clerk District Court.”
The summons was returned within the time prescribed, with the following certificate of service indorsed thereon:
“State ok Kansas, Jewell County, ss.
“I received this writ the 31st day of January, 1898, and on January 31, 1898, served the same by delivering a copy thereof, with the indorsements thereon, duly certified, to the within-named Wm. Eastwood, personally. J. W. Cubbison, Sheriff.
O. H. Durand, Under-sheriff.”
The defendant, Eastwood, made no appearance in the trial court. Judgment was rendered against him for the sum of $522.22, with interest and costs of suit. An execution was duly issued upon the .judgment, which was placed in the hands of Cubbison as sheriff, who levied on and was about to sell the property of the judgment debtor, when this action was instituted.
Upon the trial, the plaintiff sought to show by oral testimony and by a copy of the summons served that, there was no indorsement of the amount for which plaintiff claimed judgment. The only question presented is whether the court erred in excluding this testimony or not. The original summons, in substance, form., and as to indorsements, contained all that the statute required. The officer’s return shows that he served the summons by delivering a copy thereof, with the indorsements thereon, duly certified, to the defendant personally. The only question therefore arises upon the action of the trial court in refusing to permit the plaintiff’in this manner to impeach the officer’s return.
A sheriff’s return with respect to service of original process may be impeached so far as it states facts upon which jurisdiction depends, where the facts stated do not come within the personal knowledge of the sheriff. In the case at bar, the sheriff in his return states that he served the summons by delivering a copy thereof, with the indorsements thereon, duly certified, to th'e defendant personally. The manner of service made by the officer was within his personal knowledge, and his return in this respect is conclusive as between the parties. The return cannot be questioned in an action brought to enjoin the enforcement of the judgment based upon such service. The authorities relied upon by the plaintiff in error are not applicable to the question under consideration.
The question presented has been determined by the supreme court adversely to the plaintiff in error in Goddard v. Harbour, 56 Kan. 749, 44 Pac. 1055. The court properly excluded the offered evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
McElroy, J. :
This was an action in replevin brought by Bingman, defendant An error, against Zeisler and Allix, plaintiffs in error, for the recovery of 500 bushels of wheat, of the alleged value of $260. The defendant Zeisler filed a general denial; Allix for her answer disclaimed any right, title or interest in the property. By consent of the parties the case was tried to the court without a jury. The court made special findings of fact and conclusions of law, and rendered judgment against the defendants for the recovery of 395 bushels of wheat, or, in case a recovery thereof could not be had, for the sum of $197.50 as the value of the property. To all of this defendants duly excepted and objected. Zeisler alone filed a motion for a new trial, which was overruled. ' The defendants, as plaintiffs in error, present the record to this court for review, alleging- error as follows : (1) That the court erred in rendering judgment against the plaintiff in error Adela Allix; (2) that the special findings of fact are not sustained by sufficient evidence, and are contrary to the evidence ; (8) that the court erred in its conclusions of law; (4) that the decision of the court should have been given for the plaintiffs in error according to the law of the land ; (5) that the court erred in overruling the motion for a new trial. There are numerous other assignments of error, but these only are argued by the plaintiffs in error in their brief.
The principal facts are as follows: For some ten years preceding the year 1897, Bingman had been renting a quarter-section of farm land near Bavaria, in Saline county, from one Stewart, a resident of Illinois ; he had been paying for the same a cash rental. It was his custom to sublet the land. Zeisler had rented the land from Bingman for the years 1895, 1896, and 1897. In July, 1897, Zeisler again leased the land of Bingman for the following season, but a few days later found he could not work all the land as he had expected, and, at his suggestion, Bingman gave permission to one Renton to put in wheat that fall on all that portion of the land not sown by Zeisler. Both Zeisler and Renton agreed to give Bingman as rent one-third of all grain raised by them upon the premises.
Up to this time Stewart and Bingman had not definitely agreed upon the amount of cash rent for the next ensuing year. Stewart wanted $150 rent for the next year. Bingham thought this rent ought to be reduced. Zeisler suggested that he might be able to get the place for him for $125. Bingman then told Zeisler that if he could renfc it for him for $125 for one year he would give him one-half of the difference between that sum and the $150. Zeisler agreed to undertake to secure a lease of the land for Bingman for a year on the terms stated, and on his request, and for that purpose, Bingman gave him the owner’s address. After some correspondence Zeisler secured the land for $125, but instead of taking the lease for Bingman, his principal, he took it in his own name, executing a note for the rent agreed upon, and wholly repudiated his agency. This contract was not closed by Zeisler, however, until near harvest time. Bingman paid Stewart the amount of the note, and took an assignment thereof to himself.
The wheat in controversy is the rental share of the crop raised. Bingman was present at the thrashing and demanded his share of the grain. Zeisler refused to let him have it, hauled it off, and stored it in a bin on the Allix premises. Before demanding the wheat Bingman tendered to Zeisler the rent note which he had taken up, and $12.50 in money. This tender was refused and suit followed.
The first contention is that the judgment against Allix was unauthorized, inasmuch as she had filed a disclaimer. The petition alleges that both defendants wrongfully detained from plaintiff the possession of the property in controversy. The gist of the action of replevin is the wrongful detention of property. The answer filed by Allix does not amount to a general denial; she simply disclaims any right, title or interest in the property; all she says may be true, and yet she may wrongfully detain the possession of the property. When the property was seized by the officer the defendants gave a redelivery bond and retained possession of the same. Allix filed no motion for a new trial. We cannot review the evidence ; the presumption is that the judgment was authorized by the testimony.
It was contended by the plaintiff that he leased to the defendant Zeisler the lands upon which the wheat in controversy was grown, for which he agreed to pay him one-third of the crop raised upon the premises. The testimony as to this transaction between the • parties was oral and conflicting. The court found in favor of the plaintiff. The findings of fact of the trial court upon conflicting testimony cannot be reviewed by this court. It clearly appears that Bingman had for years been the tenant of Stewart; that Zeisler for two or three years had been the tenant of Bingman, each leasing the land from year to year. These parties each held the premises over, and thereb}^ remained tenants from year to year. The defendant Zeisler contends, however, that he held over without special contract. This does not place him in any better situation than he is left by the findings of the court. In either case he is the tenant of Bingman, and should account to him for the rental value of the-premises.
Under the third assignment, the contention is that the first and third conclusions of law are conflicting. They read:
“That the defendant Zeisler held the lease secured from said A. E. Stewart for the land in question as trustee for the benefit of said plaintiff.”
“ That at the commencement of this action the plaintiff was the owner and entitled to the immediate possession of the wheat replevined herein.”
The lease from Stewart mentioned in the first conclusion of law was procured by the defendant as trustee for plaintiff. This fact was established by the weight of testimony, and the court so found ; so that the only trust relation as found by the court was that defendant held the written lease as trustee, not that he held the premises as such trustee. The court found very clearly that he held the premises as tenant of plaintiff. With this view of the scope of the finding there is no irreconcilable conflict.
The only additional matter presented for consideration in the fourth assignment of error is that the district court had no jurisdiction, the amount in controversy being less than $300. This question was not raised in the trial court; hence cannot be raised here at this time. The action of replevin existed independent of the statute. Section 31 of chapter 121, General Statutes of 1897 (Gen. Stat. 1899, §3744), which confers jurisdiction upon a justice of the peace, is not exclusive. The district court in such actions has original concurrent jurisdiction.
From what we have said, it follows that the motion for a new trial was properly overruled. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wells, J. :
This case has previously been before this court and was reversed upon substantially the same pleadings, evidence, findings and judgment as in the record before us (A. T. & S. F. Rld. Co. v. McFarland, 2 Kan. App. 662, 43 Pac. 788) ; and the only question we think it necessary to consider herein is as to the effect of a decision of this court. In.overruling a demurrer to the evidence, the trial judge concluded in this language :
“In arriving at this conclusion, I am profoundly sensible of the fact that it is going contrary to the decision, the very plain decision, of the court of appeals. Language could not be written plainer than Judge Garver has written here ; but in view of the fact that the court of appeals is not the court of last resort, I am constrained to exercise my own judgment in the matter. I know the responsibility is a serious one, and I would be glad to be relieved from it; but it is here and I must take it. The demurrer is now overruled.”
The question seems to be, Does the decision of the court of appeals rendered in a case duly brought here from the district court on a petition in error settle the law of that case on the points decided so as to bind the district court upon a second trial of the same case on the same issues?
The district judge argued that because it was possible that the case could be taken to the sujereme court, and that court might decide differently from this court, therefore the decision of this court was not binding. We do not so understand the law. Section 12 of the act creating this court reads as follows :
“ Orders, judgments and decisions made and rendered by such courts of appeals in cases pending therein shall have the same force and effect as if made by the supreme court, and its mandate to any inferior court sh.all be obeyed in like manner as mandates from the supreme court, and shall be final, except as herein otherwise provided. Its process shall-be executed by sheriffs and other officers in like manner as the process of other courts of record.”
In Headley v. Challiss, 15 Kan. 602, it was held :
“ Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made a subject of reexamination.”
The reasons of this rule are well explained in a decision of the supreme court of Vermont (Stacy v. Vermont Cent. R. Co., 32 Vt. 552), as follows :
“The question is, will this court revise a former decision made by the same court in the same cause and on substantially the same state of facts? Such a decision presses itself upon the consideration of • the court with a twofold force ; first, as an authority, as though it was a decision made in any other case ; second, as an adjudication between the parties; not asoné that is conclusive as a matter of law, for the court may revise and reverse it, but as an adjudication that practically is to be regarded as having much the same effect. The rule has been long established in this state, often declared from the bench, and we believe uniformly adhered to, that in the same cause this court will not reverse or revise their- former decision. It is urged, and there is force in the argument, that if there is error in the decision, and it is ever to be reversed, it should be done in the same court. Although this position may be sound in theory, as applicable to a single case, yet as a rule to be acted upon in all cases it -would lead to incalculable mischief. If all questions that have ever been determined in this court are to be regarded as still open for discussion and revision in the same cause, there would be no end of their litigation until the ability of the parties or the ingenuity of their counsel were exhausted. A rule that has been so long established and acted upon, and that is so important to the practical administration of justice in our courts, we think should not be departed from. And whatever views the different members of this court may entertain as to the soundness of the former decision, we all agree that the doctrine there enunciated is to be regarded as the law of this case.”
The judgment of the district court is reversed, and judgment directed in favor of the defendant, the plaintiff in error.
McElkoy, J., concurring.
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The opinion of the court was delivered by
Wells, J.:
The controversy in this case is over the right to $395.02 collected by the receiver and ordered by the district court to be paid to the defendant in error, the Merchants Savings Bank of Providence.
The plaintiff in error presents and argues two propositions of law, and contends that if either is correct the judgment or order complained of should be reversed, while the defendant in error contends that only the second proposition was submitted to the district court and that only should be considered by this court.
The first proposition is: “The receiver was appointed upon the application of plaintiff in error, and thereunder took possession of the property and collected the rents for his benefit.” We do not think this is the law. In High on Receivers, section 1, it is said:
• “A receiver is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it. He is not the agent or representative of either party to the action, but is uniformly regarded as an officer of the court, exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of all parties in interest. Being an officer of the court, the fund or property entrusted to his care is regarded as being in custodia legis, for the benefit of whoever may eventually establish title thereto, the court itself having the care of the property by its receiver, who is merely its creature or officer, having no powers other than those conferred upon him by the order of his appointment, or such as are derived from the established practice of courts of equity.”
The same authority, in section 5, says:
“A receiver being appointed for the preservation of the fund or property pendente lite, and for its ultimate disposal according to the rights and priorities of the parties entitled, the remedy is regarded as in the nature of a sequestration rather than as an attachment of the property, and it ordinarily gives no advantage or priority to the person at whose instance the appointment is made over other parties in interest. Nor does it change the title to or create any lien upon the property ; its purpose in this respect being rather like that of an injunction pendente lite, to preserve the subject-matter until the rights of all parties may be judicially determined. And in the exercise of this branch of its extraordinary jurisdiction, equity reverses the ordinary course of administering justice, and levies upon the property a kind of equitable execution, by means of which it makes a general appropriation thereof, leaving the question of who may finally be entitled to be determined thereafter.”
In Hannah K. Chase’s Case, 1 Bland Ch. (Md.) 206, 17 Am. Dec. 279, Bland, chancellor, said: “The appointment of a receiver does not involve the determination of any right, or affect the title of either party in any manner whatever.”
A receiver has been described as the hand of the court of which he is an officer; his appointment determines no right, nor does it affect the title of the property in any way, and his holding is the holding of the court. While he can be appointed only on the application of some one who appears to have an interest in the subject-matter, the applicant gets no greater rights than if one of the other litigants had made the application.
The second proposition argued, and this it is insisted by the defendant in error is the only question now before us, is : “ The lien of the judgment (in favor of King) was lost as against other judgment creditors by failure to have execution issued and levied within one year.” This raises the clearly defined question, Does section 476 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4729) apply to mortgage liens upon real estate after foreclosure? Said section, so far as it is necessary to consider it in this case, reads:
“No judgment heretofore rendered- or which hereafter may be rendered, on which execution shall not have been taken out- and levied before the expiration of one year next after its rendition, shall operate as a lien on the real estate of any debtor to the prejudice of any other judgment creditor.”
This is a new question in Kansas practice, so far as we are able to learn, and no authority directly in point is cited by either party.
The contention of the plaintiff in error is that the code makes no distinction as to the nature or kind of judgment the lien of which shall so expire, and that a judgment in an action upon a note secured by mortgage is the same kind of a judgment, so far as the section of the statute referred to is concerned, as one upon any other obligation for the payment of money.
To sustain his contention, we are referred by the plaintiff in error to several sections of the statute and to the following decisions of our supreme court: Smith v. Burnes, 8 Kan. 198; Lisle v. Cheney, 36 id. 578, 13 Pac. 816; Gillespie v. Lovell, 7 id. 423; Lamme v. Schilling, 25 id. 92; Scroggs v. Tutt, 23 id. 190; Kothman v. Skaggs, 29 id. 5; Thompson v. Hubbard, 3 Kan. App. 714, 44 Pac. 1095; Smith v. Kimball, 36 Kan. 474, 13 Pac. 801; and Lakin v. McCormick & Bro., 81 Iowa 545, 46 N. W. 1061.
We have examined with considerable care all of the authorities cited, and such others as we have been able to find bearing upon the question, and are unable to sustain his contention.
The only part of the decision in Smith v. Burnes, supra, that appears to have any bearing on this case is as follows:
“There was no formal levy of the order of sale on said lot. This, we think, was not necessary. The court had complete jurisdiction of the property without any formal levy. The court ordered that it be sold ; and the sheriff had no power to seize or sell any more or any less than the specific lot which he was ordered to sell. The order of sale was not a general execution which the sheriff could levy on any property.”
In Lisle v. Cheney, supra, the main question was: “Is the personal judgment rendered against the mortgagor, in an action to foreclose a mortgage, a lien on the other real estate of the debtor within the county?” And the court held that it was, and that a stay of execution did not suspend the lien so that a third person could purchase the land during the stay free from the lien. That is all that the supreme court necessarily passed upon in that case. Some extracts from the opinion of the commissioner who reported the case to the supreme court are cited by the plaintiff in error to sustain his contention, but even giving them the authority of a decision of the court we do not think they sustain his position. The following extracts may be selected as the strongest:
“ So that we are unable to see from a consideration of these two sections combined that legislation has made any exception in case of mortgage liens; they are placed on the same footing as liens in other actions for the recovery of judgments for money.”
“ So that a mortgage lien, in an action to foreclose it, and in the enforcement of it after it has passed into judgment, is subject to all the other provisions of the statute and the principles of the law, on all questions respecting it.”
“Actions to enforce charges or liens on specific property that were formerly equitable in their nature are now converted into legal actions.”
“ From these cases it must be held that in this state all civil actions to enforce liens on specific property are to be regarded in classification as legal actions for the recovery of money.”
“The lien thus created and declared by statute exists until the judgment becomes dormant, or is barred by the statutes of limitation. It is true that under § 468 it may become subordinate to the lien of some other jugdment creditor, by failure to have execution issued and levied within a year after its rendition.”
“ If it is a first one [lien] , its seniority must be preserved by levy within the year.”
When these extracts are read in connection with the question that was before the court, as to the effect of the money judgment upon property not mortgaged, they lend but little if any support to the claim of the plaintiff in error.
The question in that case was solely as to the effect of the so-called deficiency judgment. There was a mortgage lien upon the property mortgaged. This was created by the act of the parties themselves and. required no judgment of the court to establish, and no question of its validity was suggested, but after the mortgaged property had been appropriated toward the payment of the debt a balance remained for which the plaintiff had a personal judgment, the effect of which was then being discussed, and it was held to be a lien on all of the real estate of the debtor within the county. As regards this lien, “it is true that under § 468 it may become subordinate to the lien of Some other judgment creditor, by failure to have execution issued and levied within a year after its rendition.” And, “if it is a first lien, its seniority must be preserved by levy within the year.”
None of the authorities cited is sufficient to cause us seriously to doubt the correctness of the conclusion arrived at by us that the lien of a mortgage upon the mortgaged property is not lost upon a foreclosure being had and no order of sale issued within a year thereafter ; and that the language, “ no judgment . . . shall operate as a lien,” has reference only to liens created by the operation of law and not to liens ere ated by the contract of the parties. In the one case the court must get possession of the property by a levy of execution ; in the other, it “ already had complete jurisdiction of the property without any formal levy.”
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dennison, P. J. :
This action was commenced in the district court of Barton county by the defendant in error upon a supersedeas bond in the sum of $500, given in the case of Fields v. McCormick et al., and signed by these plaintiffs in error as sureties for McCormick.
The case of Fields v. McCormick et al. was a foreclosure, and the judgment against- McCormick was for a sale of the mortgaged premises and the payment of any deficiency there might be after said sale. The mortgaged premises were sold to one C. C. Rush for the sum of $500 before the certificate of the filing of the case in the supreme court was filed with the clerk of the district court of Barton county. The certificate was filed the next day after the sale, and no further proceedings were had thereunder. Rush was made defendant in the court below, and in his answer alleged that he was entitled to the benefit of the bond because he was thereby deprived of the use and occupation of the premises. While the case was pending in the supreme court the defendants demurred to his answer, and the demurrer was by the court sustained, and, Rush electing to stand on his demurrer, no further proceedings were had as to him.
Judgment was rendered against the plaintiffs in error for the full amount of the bond, to apply upon the deficiency judgment in Fields v. McCormick, and they bring the case here for review. We are asked to dismiss this case for the reason that Rush is not made a party herein. The petition in error in Fields v. McCormick et al. was filed in the supreme court on July 11, 1891, and the supersedeas bond was duly approved on July 7, 1891. If it was filed prior to or on July 11, 1891, the execution of the judgment would have been stayed ón that day and the sale to Rush on July 13, 1891, would be void, and he would not be a necessary party to a review in this court. However, the record does not show that the supersedeas bond was ever filed. If it was not filed, then Rush has no interest in it. The motion to dismiss will be overruled and the case considered upon its merits.
The plaintiffs in error contend that the court erred in overruling their demurrer to the evidence of the plaintiff below. If the evidence failed to show that the bond was filed as required by section 594 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4848), the demurrer should have been sustained. The statute provides that the clerk of the court in which the record of such judgment or final order shall be
“shall take a written undertaking to be executed on the part of the plaintiff in error to the adverse party with one or more sufficient sureties, and the execution of the undertaking and the sufficiency of the sureties must be approved by the court in which the judgment was rendered, or order made, or by the clerk thereof; and the clerk shall indorse said approval, signed by himself, upon the undertaking and file the same in his office for the defendants in error.”
If the bond was not delivered to the clerk and filed by him it never became effective, and no liability exists against the sureties thereon. If the bond was filed on July 7, 1891, the day it was approved, then it became effective upon the filing of the petition in error in the supreme court on July 11, 1891, and the sale made July 13, 1891, was void, and in order to.' establish the liability of plaintiffs in error another sale must have been made to determine the amount of the deficiency remaining unpaid.
The defendant in error contends that the stay did not become operative until the certificate of the clerk of the supreme court was filed with the clerk of the district court where the judgment was rendered. The statute nowhere makes the filing of the certificate a condition precedent to the operation of the stay of execution. The filing of the petition in error and the filing of a proper bond are the only requirements.
The judgment of the district court is reversed and the case remanded for a new trial.
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The opinion of the court was delivered by
Wells, J.:
The defendant was tried upon an information charging him in seven counts with the unlawful sale of intoxicating liquors. He was found guilty on the first and seventh counts, not guilty on the second, third, fourth and fifth counts, and the jury disagreed upon the sixth count. A motion for a new trial was overruled as to the first count and sustained as to the seventh. The case was continued for trial upon the sixth and seventh counts. The defendant was sentenced to pay a fine and suffer imprisonment upon his conviction on the first count, which fine and costs were paid and imprisonment suffered. At a subsequent term the defendant was tried upon the sixth and seventh counts, convicted upon the sixth and acquitted upon the seventh. From the judgment upon' this conviction the defendant appeals to this court.
There appear to be two questions raised in this case : (1) Upon a second trial of a criminal action, is the state bound by its election at the first trial as to what particular sale it would rely upon for conviction? (2) Was the giving of the following instruction reversible error?
“The state has been by the court required to elect upon what transactions it will rely for a conviction under each of the counts of the information ; and the state in pursuance thereof has elected to rely for a conviction under the sixth count of the information upon an alleged sale to John M. Kessler on the 4th day of July, 1898 ; and has elected to rely for a conviction under the seventh count of the information upon an alleged sale to John M. Kessler on the 25th day of August, 1898, and unless you find, beyond a reasonable doubt, from the evidence that the sales were made, if any are so found, to said John M. Kessler on some date within two years next' prior to the institution of this prosecution, by the defendant, you must find defendant not guilty.”
Upon the first question, it is contended by the state that this identical proposition was before the supreme court in The State v. Coulter, 40 Kan. 87, 19 Pac. 368, and decided adversely to the appellant; while the appellant contends that the case cited does not decide the question raised, nor is it pertinent. While the cases are not identical, the one being upon an appeal from a conviction before a justice of the peace and the other upon a retrial in the district court, we see no material distinction upon the question at issue ; one is as much a trial de novo as the other, and the same reasoning that sustains the one supports the other. We conclude that the election as to the evidence relied upon for conviction applies only to the trial then in progress, and has no force or effect in a subsequent trial.
Upon the second question, the appellant contends that, as the state had elected to stand for conviction upon the sixth count upon a sale of two glasses oí beer on July 4, 1898, to J. M. Kessler, as testified to by him, the court should have instructed the jury to confine their attention under that count to sales made on that specific day. Section 72 of chapter 102, General Statutes of 1897 (Gen. Stat. 1899, § 6355), reads :
“ The precise time of the commission of an offense need not be stated in the indictment or information ; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense.”
In The State v. Barnett, 3 Kan. 250, it was held:
“ It is not necessary that the precise time of the commission of an offense should be pleaded, if it is shown to have been within the limitation prescribed by statute.”
In City of Emporia v. Volmer, 12 Kan. 622, the supreme court held:
“ Under a complaint charging an offense upon one day, a defendant may ordinarily be convicted of committing the offense upon some other day, and the time alleged is not material.”
The rule seems to be that the jury must find the defendant guilty, if at all, of the particular transaction relied on, but a variation from the exact time stated would not necessarily prove fatal to the prosecution.
We see no reversible error in this case. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wells, J. :
This was an action under the forcible entry and detainer act, originally brought by the defendant in error against the plaintiff in error before a justice of the peace in the city of Topeka. A trial there resulted in a judgment for the plaintiff. An appeal was taken to the district court, where it was again tried and judgment for the plaintiff again rendered. The case is now before us for review.
There are five assignments of error, by the first four of which it is alleged that the court below erred in overruling the demurrer of the plaintiff in error to the evidence of the defendant in error, in giving improper instructions to the jury on behalf of the de fendan-t in error, in refusing to submit to the jury proper and material questions reduced to writing and requested by the plaintiff in error, and in overruling -the motion of the plaintiff in error for a new trial; ^and the fifth assignment is that the verdict of the jury and the judgment of the court are not sustained by the evidence, and are contrary to law.
In support of the first allegation plaintiff in error insists, (1) that the notices were insufficient and invalid ; (2) that the evidence fails to show legal service of either notice ; (3) that the notices were waived by the acceptance of rent after their termination.
We think the thirty days’ notice was valid. It was signed by D. T. Gregg, agent, and by S. A. S. Greenspan, landlord, by Simon Greenspan, agent; either of these signatures would have been sufficient and the additional one does no harm. The notice comes clearly within the reasoning of Conaway v. Gore, 22 Kan. 217, as does also the so-called three days’ notice. In regard to the service, it is shown by the evidence that the notices were served, but it does'not appear how they were served. “A demurrer to the evidence admits not only the truth of the facts directly proven by the plaintiff, but also all that may fairly be inferred from those facts.” (City of Syracuse v. Reed, 46 Kan. 520, 26 Pac. 1043.)
Were the notices to terminate the lease and to quit the possession of the property waived by the acceptance of the rent accruing after the service thereof? The payments were of sums due under any theory of tenancy claimed by either party, and by neither the making nor acceptance thereof did either party waive his right to litigate the validity of his claim.
Objection is made to the fourth instruction given by the court for the reason that no such notice as therein, described was given in this case, and that such instruction left the impression on the jury that such a notice was made and legally served on the defendant. This objection is not valid. If the law required the kind of a notice described in this instruction to be served and the jury found that the notice which was served did not fill the requirements, they should have found for the defendant, and it did not injure the defendant’s case to tell the jury so. The statute does not require the kind of a notice apparently indicated by the instruction, but we do not see how the error could prejudice the rights of the defendant.
The seventh instruction is claimed to be erroneous, first, because a memorandum was reduced to writing ; second, because, under the decision in Becker v. Mason, 30 Kan. 697, 2 Pac. 850, such a contract is not void; third, that the court erroneously construed the memorandum in evidence as not sufficient to take the contract out of the statute of frauds. The paper referred to is as follows :
“No. 10. Topeka, March 6, 1896.
“Received of Mrs. Samuels forty dollars for rent of dwelling No. 516 West Tenth street for one month ending April 15, 1896.
“140.00. Thos. G. Shillinglaw, Agt.”
On the back of which was written the following:
“This receipt calls for lease to 516 West Tenth street for one year with privilege of more, all in good repair. Shillinglaw, Agt.
for S. A. Greenspan.”
We do not think this was sufficient to take the contract out of the operation of the statute of frauds. It was not signed by the owner or by her agent, “ thereunto lawfully authorized by writing.” The decision in Becker v. Mason, supra, was not founded upon the section of the statute that governs the case at bar.
In relation to the refusal of the court to submit certain special questions of fact to the jury for the reason that the cause was appealed from a justice of the peace, it seems to be argued by the defendant that as no special questions could be submitted in the trial before the justice of the peace none could be insisted on in the district court. We do not so understand the law. When a case is taken on appeal to a .higher court the appellate court has only the jurisdiction of the court from which the case comes, but the mode of procedure is that of the court in which it is being tried. If the questions asked were material to the issue they should have been submitted. We think that if questions 1, 2, 3, 6 and 7 were- answered yes, and the question 4 was answered no, the judgment must have been for the defendant. We are not sure but that some of the questions could have been differently answered from that indicated above and yet judgment for the defendant be properly rendered. The writer of this opinion is inclined to think that if the plaintiff knew of the contract between her agent and Mrs. Samuels, and so knowing' accepted benefits thereunder, or allowed the lessee to incur expenses in relation thereto, without objection, she would be estopped from denying its validity for a year thereafter. However, we do not decide this question now.
The judgment of the district court will be reversed and a new trial directed,
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The opinion of the court was delivered by
Wells, J.:
There is but one question in this case, and that is upon the construction of our statutes. A widow, the head of a family, die's intestate, leaving heirs, some of whom are her minor children, who continue to occupy the homestead after her death. Can partition of said homestead be made before such children become of age, over their objection? The only statutes cited as bearing upon this question are sections 2, 4, 5, 7 and 26 of chapter 109, General Statutes of 1897 (Gen. Stat. 1899, §§ 2442, 2444, 2445, 2467), which read as follows :
“ Sec. 2. A homestead to the extent of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, occupied by the intestate and his family at the time of his death as a residence, and continued to be so occupied by his widow and children after his death, together with all the improvements on the Same, shall be wholly exempt from distribution under any of the laws of this state and from the payment of the debts of the intestate, but shall be the absolute property of the said, widow and children ; provided, however, that the provisions of this section shall not apply to any encumbrance given by the consent of both husband and wife, nor to obligations for the purchase of said premises, nor to liens for the erection of improvements thereon.”
“ Sec.. 4. If the intestate left no children, the widow shall be entitled to said homestead, and if he left children and no widow, such children shall be entitled to the same.
“ Sec. 5. If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the age of majority, said homestead shall be divided, one-half in value to the widow, and the other one-half to the children.”
“Sec. 7. When a married woman shall die intestate, owning a homestead in her own right, the same shall descend in the manner herein provided in other cases.”
“Sec. 26. All the provisions hereinbefore made in relation to the widow of a deceased husband shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs. The estates of dower and by curtesy are abolished.”
It is argued by the defendants in error that ‘ ‘ section 4 evidently refers to the same kind of a homestead as that mentioned in section 2; that is, one which is wholly exempt from distribution under the laws of the state, and from the payment of the debts of the intestate. In connection with sections 7 and 26, it provides that, if the intestate left children but no husband, ‘ such children shall be entitled to the same ; ’ that is, to the homestead, wholly exempt from distri bution under the laws of this state, and from the payment of the debts of the intestate.”
The first question is : What is meant by “wholly exempt from distribution under the laws of the state ” ? Evidently it does not mean that said homestead is never to be divided between those to whom it descends, as section 5 provides for a partition in certain contingencies. Its meaning must be that said homestead is not to be distributed as a part of the general estate of the deceased.
Section 4 provides that if the intestate left no children the widow shall have the homestead, and if he left no widow the children shall have it. Then section 5 provides substantially that if he left both widow. and minor children the homestead shall be retained by the family while such conditions continue as naturally'hold a family together. This has no bearing. on section 4, but provides for contingencies other than those therein provided for.
There being no statute declaring when a homestead that descends to children only may be partitioned, the logic is irresistible either that it can never be partitioned, or that it may be done at any time any of the owners desire. That it can never be done is a proposition that is not contended for and does not merit any consideration. In Vandiver v. Vandiver, 20 Kan. 501, the supreme court held:
“Where a husband and wife occupied certain real estate as a homestead at the time of the husband’s death, and their children were all of age, and none of them occupied the residence of the intestate at his death, nor thereafter, but the widow continued to occupy it as her home after the decease of her husband, the premises are the absolute property of the widow and her children ; and the children, being all of age, are entitled to have the premises partitioned, one-half in value to go to the widow, and the other half in value to go to the children. If the homestead is not susceptible of division, the same may be sold and the proceeds divided.”
It seems to us that the reasoning of this opinion, as far as it goes, is in favor of the reversal of the case at bar. If, when the husband dies and leaves no minor children, the homestead can be immediately partitioned at the instance of an' adult child who has left home, and the home of the widow thus destroyed, no greater hardship would result from the partition of a home occupied exclusively by minors. But this is not a question of a comparison of hardships, or even a question of policy, but it is rather one of construction of statutes; and we know of no rule of construction that would warrant us in reading into this statute an immunity from partition not embodied therein by the legislature.
The judgment of the district court refusing to partition the homestead is reversed, and said court is directed to cause such partition to be made.
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The opinion of the court was delivered by
Milton, J. :
This action was brought in the district court of Reno county upon a policy of insurance for $1000, issued on February 11, 1896, by the plaintiff in error to one Christian Hess, covering his dwelling- house in Halstead, Kan. On the 24th of April in the same year the property was destroyed by fire, and shortly after this Hess assigned the policy to the defendant in error, plaintiff below, in whose favor judgment was thereafter rendered for the face of the policy with interest.
The only defense to the action urged in this court is that the policy was made void by the act of Hess in procuring, on April 4, 1896, without the consent of the defendant below, additional insurance on the property in the Phenix Insurance Company, of Brooklyn. The policy sued upon and that issued by the Phenix Insurance Company each provided, in substance, that if the assured should, without the written permission of the insurer indorsed on the policy, then have or thereafter make or procure any other contract of insurance, whether valid or not, covering the same property, the policy should be void. The insurance written by the Phenix company was procured by the wife of Christian Hess, without his knowledge or consent, during his absence in Oklahoma, and he did not learn of the transaction until after the loss by fire had occurred. Thereafter he assigned both policies to defendant in error, which effected a compromise of the claim against the Phenix company, the latter paying the sum of $350, for which the defendant in error gave Hess credit, he being indebted to it in a much larger sum. In his proofs of loss Hess stated the foregoing facts concerning the additional insurance. It is contended by the plaintiff in error that, in receiving the benefits of the insurance procured by his wife, Hess adopted and ratified her act in the premises, with the result that the policy sued upon was rendered void. The contention is sound, and is supported by the following cases : McElvy v. Insurance Co., Appellant, 161 Pa. St. 279, 28 Atl. 1115; DeFoe v. Johnston Insurance Co., 7 Upper Canada Com. Pleas Rep. 55; Hughes v. Ins. Co. of North America, 40 Neb. 626, 59 N. W. 112. These cases are based upon the principle which is thus declared by the supreme court of Iowa in the case of Eikenberry & Co. v. Edwards, 67 Iowa, 14, 24 N. W. 573:
“One may become bound by a contract which another, without authority, has assumed to make in his name, by knowingly accepting its benefits, or by failing to repudiate it within a reasonable time after he is fully informed of the act.”
In McKelvy v. Insurance Co., supra, the additional insurance was taken out by the wife of the assured without his knowledge or consent and he did not learn of it until after the loss. He failed clearly to disclose the fact of the additional insurance when making his first proof of loss but did so in. the second proof, some five months after the fire, and then repudiated the later insurance. The court held that the insured, on, learning of the second insurance, should have promptly repudiated it, and having failed so to do, he had ratified the same and it constituted other insurance, avoiding the policy sued upon. In DeFoe v. Johnston Insurance Co., supra, the assured collected money upon the second policy, which, without his knowledge or consent, had been procured by his father. Referring to the proper course of the assured upon discovery of the additional insurance, the court said :
“His course in such a case would be clear. Immediately on discovering it he could repudiate the act and decline any benefit under it. In the case before us the plaintiff chose to at once ratify and adopt the assurance made, as is alleged, by his father- in his name. He received large sums of money under it. . The act of the agent is assumed as the act of the principal from the beginning. It is considered as wholly done with his assent, and as he is willing to receive the benefit, he must take all the legal consequences.”
In the case of Hughes v. Ins. Co. of North America, supra, to overcome the defense that the policy sued upon was avoided by additional insurance taken out in violation of its provisions, it was shown that one Hynes, who was the agent of Hughes for the purpose of renting and looking after the insured property, and who had no authority to procure insurance thereon, had taken out the additional insurance without the knowledge of his principal, who did not learn of such fact until after the loss occurred. Shortly after the fire Plughes made a settlement with the company from which Hynes had procured the policy, receiving a considerable sum in satisfaction of his claim under the policy. The court said :
“Here, then, was a ratification by Hughes of the act of Hynes in procuring this additional policy of insurance ; and this ratification related back to the date of the issuing of the ' policy, and Hughes became bound by the effects thereof, and by the results flowing therefrom, as much as if he had himself procured the policy of insurance. The acceptance by a principal of the fruits of an unauthorized contract made by his agent, with full knowledge of all the facts, is a ratification of such agent’s contract.”
It was contended by counsel for Hughes that the second policy, which was written by the Phoenix Insurance Company, never was in force as valid insurance, because in violation of the terms of the second policy itself, and that by the provisions of the policy in suit.he was prohibited from procuring other valid insurance only. The court held that the provision in question did not render the policy void, but made it voidable at the election of the Phoenix company; and also pointed out the fact that Hughes had promised that he would not procure any additional insurance on the property without the consent of the litigant company, and that having violated such agreement, and after such violation was pleaded as a defense to his action upon the policy, he then pleaded in avoidance of such defense that although he attempted to violate that agreement he did not succeed because the contract he made for additional insurance was not valid. Upon this point’ the court said :
“The courts decline to adopt any such jugglery. To permit Hughes to say that the Phcenix Insurance Company’s policy never had any validity is to permit him to take advantage of his own wrong. The courts will interpret and enforce the contracts as made and understood by them, when such contracts were entered into upon a valuable consideration and without fraud or mistake.”
The following cases hold that a provision like the one in question concerning additional insurance, “whether valid or not,” renders the policy voidable at the option of the insurer: Sugg v. Insurance Co., 98 N. C. 143, 3 S. E. 752; The Phenix Insurance Co. v. Lamar, 106 Ind. 513, 7 N. E. 241; Funke v. Minnesota Farmers’ Mut. Fire Ins. Ass’n, 29 Minn. 347, 13 N. W. 164; Home Fire Ins. Co. v. Wood, 50 Neb. 381, 69 N. W. 941; Keyser v. Insurance Co., 66 Mich. 664, 33 N. W. 756; Zinck v. Phœnix Ins. Co., 60 Iowa, 266, 14 N. W. 792.
The only decision cited by the defendant in error in opposition to the foregoing decisions is Dwelling House Ins. Co. v. Garner, 56 Ill. App. 199, wherein it was held that knowledge obtained after the loss, even where it was enforced by a successful attempt to enforce the other insurance, is no breach of the condition ; for the object of the prohibition (against other insurance without consent of the first insurer) is to prevent the moral hazard arising from the knowledge on the part of the insured that his property is excessively insured ; and when this knowledge is not ob-' tained until after the loss, there is no increase of hazard.
The objection to the doctrine just stated is that it disregards the contract between the insurer and the insured, as was pointed out by the court in Hughes v. Ins. Co. of North America, supra: “Provisions in policies of insurance providing that the policies shall be void if other insurance be taken out without the consent of the insurer are valid. (2 May, Ins. § 364.) And subsequent insurance, taken out without the consent of the insurer, either expressed or implied, avoids the policy.” (Assurance Co. v. Norwood, 57 Kan. 615, 47 Pac. 529.)
There is another question to be considered. V/hen the policy sued upon was issued, Hess gave his promissory note for the premium thereon and the note matured after the loss occurred and before this action was commenced. In its answer the company set up this note “by way of counter-claim,” demanding judgment thereon, and the journal entry of judgment shows that the court found due the plaintiff from the defendant the sum of $1028.30, “after the deduction of the amount due on the note mentioned in the policy of insurance sued upon and given by C. Hess, which deduction is voluntarily made by the plaintiff.” The policy provided as follows : “In case of loss prior to the maturity of any note given as consideration, the company may deduct said note in settlement.” ’The defendant in error contends that by thus pleading the insurance company waived the defense that its policy was avoided by the additional insurance. This conten tion cannot be sustained. Part of the premium was already earned before the additional insurance which caused a forfeiture of the first policy was written. As a result of the forfeiture the entire premium is treated as earned, and the collection thereof does not constitute a waiver of such forfeiture. (Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354, 16 N. E. 229; 1 Wood, Fire Ins., 2d ed., § 109.)
Where the premium had been paid in cash, it was held that the assured could not, after forfeiture by reason of additional insurance contrary to the terms of the policy, recover any part of such premium under a clause of the policy providing for the return of unearned premiums upon cancelation of the policy. (Colby v. The Cedar Rapids Ins. Co., 66 Iowa, 577, 24 N. W. 54.)
In this view the premium represented by the note of Christian Hess was earned, and the right of action on the note was complete when the answer herein was filed; but that right of action was not against the plaintiff below, it was against Hess, who is not a party in this case. The “counter-claim” therefore had no proper place in the pleadings and no relevancy to the real issues before the trial court. The motion to dismiss the proceedings in error is overruled.
The judgment of the district court will be reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
McElroy, J. :
This was an action in replevin brought by Margaret McCarthy, as guardian, against Philip Talbot, as constable, to recover the possession of certain personal property of the value of $484. The plaintiff in her petition set forth the usual allegations for an action in replevin. The defendant for answer filed a general denial, admitting, however, his official capacity and the possession of the property. The case was tried before the court and a jury. The plaintiff demurred to the evidence, and filed a motion for judgment upon the evidence. The cause was submitted to the jury upon the pleadings, evidence, instructions of the court and argument of counsel. The jury found the issues, as to certain of the personal property of the value of $134, in favor of the defendant. A motion for a new trial was overruled. The plaintiff saved exceptions to the ruling of the court upon the demurrer, motion for judgment, and motion for new trial, and presents the record to this court for review.
The assignments of error present but one question, and that is that the verdict and judgment are against the weight and preponderance of the evidence. The principal facts as disclosed by the record are that Timothy and Margaret McCarthy are husband and wife, residing in Washington county. Mary E., Dennis T., Margaret A. and Frances J. McCarthy are their minor children. Margaret McCarthy is, by the appointment of the probate court, guardian of these minor children. Philip Talbot was at all times a constable of Greenleaf township. The property in question was levied upon by Talbot as constable as the property of Timothy-McCarthy, on an execution issued out of the justice’s court within his township, on a judgment for $282, in favor of E. and W. H.. Barlow and against Timothy McCarthy.
The contention of plaintiff in the trial court was that the property belonged to the minor children, and that she was entitled to possession thereof as their guardian. The defendant in error contended that the property belonged to Timothy McCarthy, the judgment debtor, and was subject to execution for the payment of his debts, and this is the question that was submitted to the jury.
The burden of proof was upon the plaintiff to establish the fact that the property belonged to the minor children, if in fact it did belong to them, and this fact must be established by a preponderance of the evidence before the plaintiff would be entitled to recover in the action. It was for the jury to determine from all of the evidence and facts proved who owned the property, the minor children, or Timothy McCarthy, the judgment debtor.
It is insisted by the plaintiff in error that the verdict was against the weight of the evidence ; that it was therefore the duty of the trial court to set aside the verdict and grant a new trial. If the verdict was, in the opinion of the trial court, clearly against the preponderance and weight of the evidence, it was its duty to set it aside and grant a new trial, but this court has no authority to do so, if the verdict is supported by any evidence. (Blair v. Fields, 5 Kan. 58; Pacific R. Co. v. Nash, 7 id. 280; Williams v. Townsend, 15 id. 564; U. P. Rly. Co. v. Diehl, 33 id. 422, 6 Pac. 566; Benninghoff v. Cubbison, 45 id. 621, 26 Pac. 14.)
The plaintiff in error relies upon the case of U. P. Rly. Co. v. Diehl, supra. The decision in that case does not support the contention. The court says:
“We think the verdict of the jury in the present case should have been set aside, and a new trial granted. It is the duty of the trial court, whenever the verdict is clearly against the weight or preponderance of the evidence, to set it aside and grant a new trial. The supreme court, however, have no such power.”
It has been uniformly held by this court and the supreme court that where there is some competent testimony to support a judgment the reviewing court has no authority to inquire into the weight of the evidence. We are unable to say that the plaintiff proved her case by a preponderance of the evidence. In a jury trial the jury are the exclusive judges of the testimony, its weight, and the credibility of witnesses. Their finding, when supported by evidence, is conclusive upon this court.
The judgment is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
The plaintiff in error sued the defendant in error to recover the value of corn purchased by the defendant from .the plaintiff’s tenant, upon which the plaintiff claimed a landlord’s lien for rent. At the conclusion of the plaintiff’s evidence the defendant interposed a demurrer, which was sustained by the court, and, thereupon, judgment was entered for the defendant. The petition alleged the making of the lease, the growing of the crop of corn, the failure, of the tenant to pay the rent stipulated for, and the sale of the crop of corn to the defendant, with no tice of the plaintiff’s lien. The answer was a general denial.
The question presented is, Was there any evidence to go to the jury? The defendant, who was called as a witness on the part of the plaintiff, testified, in effect, that before he paid for the corn he was advised of the lien of the landlord, and that he reserved $100 from the proceeds of the sale of the corn with which to defend any litigation which he might incur.
It is said in the brief of counsel for plaintiff that the contention upon the argument of the demurrer in the trial court was that the lien was lost after the corn was removed from the farm, and that the trial court sustained the demurrer upon this theory of the law. The brief of counsel for defendant, while not admitting this to be true, in a measure sustains his contention. It is said therein: ‘‘This particular corn was hauled from the farm of plaintiff some seven miles distant; none of it was bought or negotiated for elsewhere than on Stadell’s premises.”
The decision of the supreme court in Scully v. Porter, 57 Kan. 322; 46 Pac. 313, seems to be the basis upon which this contention is rested. Justice Johnston, speaking for the court, said :
“ Had the property been removed by the tenant and sold on the market, other and different questions would arise with respect to notice than we have here. So long as the property remains upon the leased premises it affords notice to all who deal with the tenant, and there is little risk of the loss of the lien.”
The third clause of the syllabus, to the same effect, holds that a purchase of the crop upon the premises is sufficient notice of the lien. Section 28 of the statute in relation to landlords and tenants (Gen. Stat. 1899, § 3741; Gen. Stat. 1897, ch. 121, § 28) says :
“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.”
This contemplates a recovery after the crop has been removed and converted, whether bought upon the premises or elsewhere. But in such cases notice of the lien must be averred and proved. There was sufficient proof of every allegation to go to the jury and sustain a verdict for the plaintiff; not to the full amount claimed, but in the sum of at least $297.
' It is contended by the defendant in his brief that the lien was waived, relinquished, and divested. While on cross-examination there was. some evidence elicited which under proper instructions might have been submitted to the jury for their determination as to whether the lien had been waived, yet it did not establish such a conclusive waiver as justified the court in so saying upon the demurrer. The court erred in sustaining the demurrer to the plaintiff’s evidence and in denying the plaintiff’s motion for a new trial.
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The opinion of the court was delivered by
Schoonover, J.:
Charles E. Beach was the owner of a stock of groceries, valued at about, $1000, and engaged in the grocery business. He owed a large number of debts and bills for money borrowed and merchandise purchased. He owed the Farmers’ National Bank of Arkansas City $500, which was past due; this note was also signed by W. S. Upp. Prior to May 22, 1893, a son of W. S. Upp had been in Arkansas City for the’ purpose of collecting or securing the claim Charles E. Beach owed his father. A settlement was made. The son paid $200 for Beach and took a chattel mortgage on Beach’s stock of groceries to secure this amount and $500 which it is claimed Beach owed his father prior to this time. On the 22d day of May, 1893, W. S. Upp arrived. The settlement made by his son was not satisfactory, and he proposed to purchase the stock of goods. The proposition was accepted by Beach, and a good portion of the night of May 22 was spent in invoicing the stock, which amounted to $1073.50.
The consideration claimed to have been paid by Upp was the $500 due the Farmers’ National Bank and the $700 secured by settlement with the son. The indebtedness of Beach to Upp exceeded the amount of the invoice by $126.50. To secure this amount Upp took an assignment of Beach’s book accounts. A bill of sale was executed and the goods delivered to Upp, who took possession and immediately placed the goods, in the custody of William Theophilus, his agent, with instructions to sell the stock at the first opportunity, and if not sold soon to ship same to Oklahoma'. Upp returned to Oklahoma on the morning of May 23. About noon on the same day, Fred Bower, the defendant in error, purchased the stock from Theophilus, agent of Upp. Ranney, Alton & Co., creditors of Beach, commenced an action upon their claim, and caused an order of attachment to be issued and levied upon the stock of goods. Bower, defendant in error, brought this action in replevin against the sheriff. The sheriff gave a redelivery bond and retained the goods. The case was tried to a jury, and verdict and judgment rendered for Fred Bower, defendant in error, for the return of the goods or the value thereof. The sheriff brings the case here for review.
The first error assigned is that the trial court erred in overruling the motion of plaintiff in error to quash the summons. It is contended that the summons is irregular and insufficient; that it does not properly describe the defendant in the action. The action is brought against “ J. B. Nipp, sheriff of Cowley county, Kansas.” In the summons, it is commanded to notify “ J. B. Nipp, sheriff.” In our opinion the variance is not sufficient to avoid the summons.
It is further contended that the service and return of the summons are fatally defective. Section 14, chapter 88, General Statutes of 1897 (Gen. Stat. 1899, § 1690), provides :
“Every paper required by law to be served on the sheriff may be served on him in person, or left at his office during his business hours.”
The return on this summons reads as follows:
“Received this writ July 15, 1893, and as commanded therein I summoned the following persons of the defendants within named, at the times following, to wit:
“ J. B. Nipp, sheriff, June 24,. 1893, by leaving a true certified copy of the within summons at the office of said sheriff, with the under-sheriff of said county, on said day, in said Cowley county.”
The only objection to this 'return is that it does not affirmatively appear that the summons was left at his office during ‘ ‘ his business hours. ’ [ The return shows a substantial compliance with the law and is sufficient.
The second error assigned is that the trial court erre'd in overruling the motion of plaintiff in error to quash the writ of replevin. The writ was issued on the 26th day of May, 1893, and the coroner was required to return it on the 5th day of June, 1893. The indorsement on the writ is as follows:
“May 29, 10 o’clock, 1893.
“Deputy Sheriff Rothrock accepts service, and then and there gave a redelivery bond'-for the within goods and chattels in the replevining of said goods. Received this writ May 29, 1893. Service accepted by Deputy Sheriff Rothrock this 29th day of May, 1893, and a redelivery bond filed this 29th day of May, 1893, and approved by me. S. S. McDowell,-Coroner.”
The contention is that the deputy sheriff has not" the power and authority to waive or accept service for his principal, the sheriff, and that there is no statute authorizing the service of such writ upon the deputy sheriff. Upon this proposition counsel have failed to cite authorities. Prom the investigation we have been able to make, we are satisfied that the irregularity is not sufficient to require a reversal of the case.
It is further contended that the district court erred in failing properly to instruct the jury on the law applicable to the facts in the case. We have considered the evidence and the instructions given. The jury, in the general instructions, were fully informed as to the issue and their attention was called to all matters necessary to a determination of the case. No request for special instructions was made and no special instructions were submitted. The court was not requested to modify, enlarge or in any way change the instructions given. If the facts justified a further instruction upon any particular phase of the case, it is not called to the attention of the court. In the case of Phinney v. Bronson, 43 Kan. 451, 23 Pac. 624, the supreme court said:
“A general charge given by the court to the jury having fairly presented the propositions involved, the failure of the court to instruct as to a phase of the case upon which an instruction might have been given, but which was not requested, is not a ground for reversal."
From our reading of the' record, the plaintiff in error had a fair trial. Every step taken appears to have been free from passion or prejudice. To compel a reversal of such case the errors should be very grave and material ones.
The judgment of the district court will be affirmed.
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Per Curiam:
On March 13,14 and 15, 1978, a panel of the State Board of Law Examiners held a hearing on a complaint against respondent, Fred W. Phelps, Sr. It filed its report, findings and recommendations on February 12, 1979. The action is before this court pursuant to Supreme Court Rule 212 (224 Kan. lxxxvilxxxvii; old rule No. 213, 223 Kan. lxxxiv).
The facts out of which respondent’s violations arose are as follows: On May 31, 1974, a preliminary hearing was held in Division One of the Magistrate Court of Shawnee County, Kansas, before Judge Allan A. Hazlett, wherein the State of Kansas was plaintiff and Sherman Robinson was the defendant charged with a felony and represented by R. W. Niederhauser, attorney. Carolene Brady was the court reporter who took the testimony at the hearing.
On July 15, 1974, Mr. Niederhauser attempted to call Carolene Brady to notify her he needed a transcription of the testimony at the Robinson preliminary hearing, but was informed Brady was on vacation and would not return until August 1, 1974. In the meantime, R. W. Niederhauser had employed Fred W. Phelps, Sr. to try the Robinson case.
On July 31, 1974, Carolene Brady returned from her vacation and on August 5, 1974, she was contacted by Niederhauser about transcribing the testimony from the Robinson preliminary hearing. Mrs. Brady advised Mr. Niederhauser at that time that she was working on a transcript for Russell Shultz of Wichita and she would not be able to provide the Robinson transcript by the date Niederhauser desired it, which was August 9, 1974. Brady told Niederhauser if he could obtain a continuance of the trial she would try to complete the transcript by August 13, 1974, and would call him on August 12, 1974 and report. The continuance to August 13 was obtained.
On August 12, 1974, Brady tried to contact Niederhauser to report she had the testimony dictated onto tape but she couldn’t find a typist. Niederhauser was not available when she telephoned so she left word for him to return her call. The call was never returned.
Later on August 12, 1974, Carolene Brady received a telephone call from a female who said she was calling from Phelps’ office advising her she’d better have the Robinson transcript ready that day “or else.” The person was later identified as Fred Phelps’ daughter, Shirley.
Brady next called Fred Phelps, Sr. to notify him, since she couldn’t find Niederhauser, that she would be unable to get the testimony typed on time. Phelps responded angrily and told her he had wanted to sue her for a long time. Thereafter, Phelps, on behalf of Robinson, filed a mandamus action in Shawnee County District Court, case No. 125695, and obtained an emergency court order for Carolene Brady to produce the transcribed testimony by 9:00 P.M. August 13, 1974, or to appear August 13, 1974, at 1:30 P.M. and show cause to the contrary. Brady found a Ms. Laird, who picked up the tapes around 4:00 P.M. August 12, 1974, and typed the transcript, taking some 6 hours to complete it. The transcription was delivered to the court at 8:30 A.M. August 13, 1974. Brady appeared at 1:30 P.M. to show cause but no action was taken. Sherman Robinson went to trial on August 14, 1974, and was acquitted.
In spite of the successful termination of the criminal action which set this sequence of events in motion, Robinson or his attorney, Phelps, continued to pursue the mandamus action and, in addition, filed a damage suit against Carolene Brady for fraud and misrepresentation, designated as case No. 125742, in the District Court of Shawnee County, Kansas. The petitioner prayed for $2,000.00 actual damages and $20,000.00 punitive damages.
Case No. 125742, the damage suit, was set for trial December 16,1976, before a jury of six, lasting 8 days. It resulted in a verdict for Carolene Brady. Case No. 125695, the mandamus action, was tried at the same time but to the court. It also resulted in a verdict for Brady.
In both trials, Fred Phelps, Sr. represented Sherman Robinson and tried the case. Fred Phelps, Jr. assisted. The case appeared to be Phelps’ personal case. He called the defendant, Carolene Brady, as his witness, had her declared hostile, then proceeded to cross-examine her for 3 or 4 full days. The record discloses that his cross-examination was abusive, repetitive, irrelevant, and represented a classic case of “badgering” a witness. Then he had the temerity to complain that Brady cried in the presence of the jury. Throughout the trial, Phelps made attempt after attempt to adduce testimony concerning Carolene Brady’s reputation for truth and veracity, her reputation for competency, the falsification of her income tax return and her morality, or lack thereof.
It is clear from our examination of the record and transcripts in that case that the trial was a personal vendetta by Fred Phelps, Sr. against Carolene Brady. The jury verdict didn’t stop the onslaught of Phelps. He was not satisfied with the hurt, pain and damage he had visited on Carolene Brady. He filed a motion for a new trial, the controversial part of which is herewith set out in full:
“1. Erroneous rulings by the Court as follows:
(a) Rejecting the proffered testimony of R. W. Niederhauser, F. G. Manzanares, Jess Danner and Richard Waters as follows: That Messrs. Niederhauser and Manzanares qualified as practicing attorneys to have an opinion as to the conduct of defendant herein, assuming all relevant facts taken in their best light for plaintiff and construed most favorably to plaintiff, that they in fact had an opinion, and that in their opinion defendant’s conduct herein was reckless. With regard to the testimony of Jess Danner and Richard Waters, that they qualified as certified court reporters to have an opinion as to the conduct of defendant herein, assuming all relevant facts taken in their best light for plaintiff and construed most favorably to plaintiff, that they in fact had an opinion, and that in their opinion defendant’s conduct herein was reckless. Rejecting Niederhauser July 15 and August 1 telephone conversations with one identifying herself as speaking for defendant.
(b) In rejecting the proffered testimony of Ralph J. Hiett, B. L. Pringle, Patrick Connolly, Dan Turner, Dick Brewster, Rodney Joyce, Patrick Brady, Kathy Fitzgerald and Karen Kennedy, as follows: That each such person had relevant knowledge of the defendant Brady, knew her reputation in the community for truth and veracity, and that such reputation was bad; further, that from their knowledge in the community they had an opinion as to the truthfulness and veracity of defendant, and as to the attitude of defendant toward her oath or other solemn obligation to speak the truth and be bound by any such oath or solemn judicial obligation, and that in their opinion defendant was not a truthful person and had scant regard toward her oath or any such solemn obligation; and further, that they had knowledge of specific instances of conduct by defendant including but not limited to the conduct of defendant when employed as the court reporter for two separate grand jury investigations in Shawnee County, and wherein the defendant Brady had a sworn duty not to reveal such grand jury proceedings to outsiders, and to maintain all such proceedings in strict secrecy, and notwithstanding such bounden and solemn duty under the law, the defendant Brady repeatedly ‘leaked’ knowledge of such proceedings to certain of those being investigated by such grand jury and who were later indicted by such grand jury including but not limited to: Morris ‘Pete’ Peterson; Gary Guerrero; Peggy Guerrero; the brother of Governor Robert Docking; and others connected to the so-called ‘architectural kickback case’; and further included but not limited to the conduct of defendant in ‘leaking’ two confidential transcripts taken by Dan Turner in his investigation of a matter involving Bill Glenn, such statements being sworn statements of Kathy Fitzgerald and Karen Kennedy, which statements were taken in secrecy and for which the defendant was bound to secrecy and which were delivered by Mrs. Brady to the news media and consequently published in violation of her solemn oath and duty. Rejecting Appendix ‘C’ in connection with such proffer.
(c) In rejecting the proffered testimony of Patrick Brady, former husband of the defendant Brady, to the effect that the three children of the defendant, Mike, Karen and Laurie, were in fact living with him (Patrick Brady) and away from the defendant Brady during the years 1974 and 1975, the very years when the defendant Brady swore on her oath to the United States government and the State of Kansas on income tax returns admitted as evidence in this case that each of said three children were in fact living with the defendant Brady in 1974 and 1975 and that the defendant Brady was therefore entitled to claim each of said three children as her personal exemptions for said years, and further, that custody of the son of the parties, Mike, changed from the defendant Brady to Patrick Brady in 1973, and since that time, the son Mike has been living with Patrick rather than the defendant, and that the only remaining minor child of the parties, Laurie, is now in the custody of Patrick Brady and all in contradiction to the sworn testimony of the defendant Brady and constituting substantial impeachment of the defendant Brady and having strong probative value in the instant case going to the critical question of whether Mrs. Brady or Mr. Niederhauser was telling the truth on vital questions of evidence.”
The defendant, Carolene Brady, responded to Phelps’ motion for a new trial by obtaining and filing affidavits from eight of the witnesses, listed by Phelps, showing they would not testify as Phelps indicated they would. The motion for a new trial was denied and the case was appealed to the Court of Appeals where the judgment of the trial court was affirmed February 17, 1978.
After Phelps had appealed Robinson v. Brady to the Court of Appeals, he filed documents to the trial court entitled, “Plaintiff’s Reply Affidavits to Defendant’s Post-Trial and Post-Appeal Affidavits.” The content of the affidavits was so scurrilous that the Court of Appeals ordered its copies expunged as of the date of the opinion and the trial court later expunged its copies from the record on November 22, 1978. In spite of the court’s order of expungement, Phelps attached two of these affidavits to the reply brief filed with this court in the present case, thus successfully making them public documents. These affidavits cast reflections on Carolene Brady’s character, wholly outside the issues of either the mandamus action or the fraud and misrepresentation case.
The facts of the case against Carolene Brady were brought to the attention of Arno Windscheffel, the disciplinary administrator, and a formal complaint was filed against Fred W. Phelps, Sr., on November 8, 1977. The complaint alleges the respondent made his proffers of testimony during the Robinson v. Brady trial and filed a motion for new trial asserting certain individuals would testify in a certain way as to Carolene Brady’s reputation for truth and veracity, for competency and reckless conduct, attitude toward her oath and obligation and for keeping a secret. Further, the complaint noted the affidavits filed by the eight witnesses stating they would not testify as asserted in the motion for new trial. Finally, the complaint alleged Phelps had “[N]o reasonable basis for asserting that the . . . named persons would testify in the manner in which he contends . . . some of the named individuals had told Phelps that they would not so testify.”
Respondent answered denying the allegations of the complaint that he made proffers of testimony which were not true and correct to the best of his knowledge, belief and understanding.
A pretrial conference was held February 9, 1978, where the issues were defined as follows:
“3. The panel chairman then states it is his opinion and he rules that the issue in this case is as to whether the Respondent made false statements to the court in his proffered testimony and in his Motion for a New Trial when the Respondent referred to his knowledge of and the nature of the testimony which would be presented by the witnesses named in Paragraphs la, lb and lc of the complaint. The panel chairman further rules that the issue of the ultimate truth of the proffered testimony is not before the hearing panel but the question is as to whether or not Fred Phelps knowingly made false statements of law or fact as to the testimony of the proffered witnesses; more particularly the issues will be as to whether or not the Respondent violated
1. His oath as an attorney
2. DR1-102A4 - ‘Engage in Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation’
3. Did he violate DR1-102A5 - ‘Engage in Conduct that is Prejudicial to the Administration of Justice’ and
4. Did he violate DR7-102A5 - ‘Knowingly Make False Statement of Fact or Law’ and
5. Did he violate Kansas Statute, KSA 60-211 when he affixed his signature to the Motion for a New Trial?”
The disciplinary hearing before the panel was held March 13, 14 and 15, 1978, with trial briefs submitted June 1, 1978. The panel made the following findings:
“The Respondent seeks to vindicate his written Motion for a New Trial by an interpretation of the motion to the effect that not all persons named would testify to all the proffers (TR-527) but that some would testify to each element. The Panel concludes this is a strained construction and interpretation of the writing. Had the Respondent so intended when he wrote the motion, he could easily have used language that would have expressly set forth what each witness would offer in testimony. The Respondent elected to ‘lump’ the names and proffers and the posthumous explanation is not accepted by the Panel.
“The Panel recognizes that in the trial of a case things may be said inadvertently. Also, we note that the reading of the transcript of the trial of Robinson v. Brady makes it difficult to get the full or true meaning of statements by counsel and of ruling by the court. However, the written Motion for a New Trial is of a different character. Here the Respondent was in the quiet of his office; he has spoken with the witness and has been advised by them as to what they will and will not testify; he has opportunity to confer with his co-counsel and with his investigator and informant. At that time he could have and should have taken steps to make certain that his ‘proffers’ were in fact correct. This would not have been difficult. For example, the Respondent had himself talked to several of the named witnesses and had been personally advised by certain of the witnesses that they could not and would not testify in the manner or to the things set forth in the motion.
“An inquiry to the investigator would have disclosed that (1) he made no written reports of his interviews and that some of the interviews were conducted in 1973 (Tr-418). (2) That Kathleen Fitzgerald had no direct information as to who may have ‘leaked’ testimony of a secret nature (Tr-419-420). (3) That the informant and investigator had never personally talked to Patrick Brady or Joyce (Tr-423) but he did talk to Joyce by phone and Joyce declined to talk about the reputation of Brady (Tr-424). (4) That he last talked to Joyce in 1973 (Tr-425) and to Brewster in 1973 (Tr-425).
“At the meeting of Respondent and his co-counsel on or about January 2,1977, when the Motion for a New Trial was prepared, the Respondent knew that certain of the witnesses would not testify as orally proffered, but he made no mention of that fact and in fact prepared and signed the motion with that knowledge in mind.
“Tr-430 (testimony relating to the preparation of the Motion for a New Trial)
‘Q. At that time did Mr. Phelps advise you or say anything to you or Mr. Niederhauser or anything that you heard that he had information that Pringle, Connolly, Brewster, Turner and Brady would not so testify as was stated in here?
A. (By Hiett) No.’
“A lawyer is an officer of the court and owes a duty to the court and to his client. DR 1-102 states:
‘A lawyer shall not
(4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’
“The Panel finds that the Respondent knew that the witnesses named in the Motion for a New Trial would not each testify as the motion states. This information was made known to the Respondent personally by some of the named witnesses. Further, because of the Respondent’s personal involvement in other prior cases and investigations, the Respondent, as an attorney, had a duty to check his sources of information, the accuracy of the information, and the possible prejudice of the informant. The Respondent ignored the warning signals and his own personal knowledge and the Panel finds that his conduct in signing and filing the Motion for a New Trial constitutes a violation of DR 1-102(A)(4) and also a violation of DR 1-102(A)(5) in that he did engage in conduct that is prejudicial to the administration of justice.
“A lawyer is an advocate and he has a duty to represent his client zealously. But, he must do so within the bounds of the law. DR 7-102 states:
‘A - In his representation of a client, a lawyer shall not
(5) Knowingly make false statements of law or fact.’
“The Panel finds that the Respondent had personal knowledge prior to the time the oral proffers were made and prior to the time the written Motion was filed that some or all of the named witnesses would not testify in the manner and to the things as stated in the proffers and in the Motion for a New Trial. It is apparent to the Panel that the Respondent was relying on innuendos and deductions and the hope that the witnesses, if called to the stand, might change their testimony. But the Respondent does not so state in his proffers or in the motion. The Respondent chose to ignore the direct testimony he had personally received and to accept the statements of his investigator and informant. The Panel finds that the Respondent did knowingly make false statements of fact and did violate DR 7-102(A)(5).
“The Panel further finds that when the Respondent signed the Motion for a New Trial, he knew of his own knowledge that certain of the statements therein made were not true and that the witnesses would not so testify and that by signing the pleading he thereby violated KSA 60-211, and that the signing of the Motion by the Respondent was a wilful act.
“Beyond these specific findings, the testimony in this case and the reference to prior related cases disclose a course of conduct by the Respondent that indicates the Respondent may have ceased to be an advocate for his client and may be embarked upon a personal vendetta against some persons and is using his position as a lawyer as a weapon. We do not make such a specific finding. However, we do call the attention of the Respondent to DR 7-102 (a) [sic] (1):
‘In his representation of a client, a lawyer shall not file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows that such action would serve merely to harass or maliciously injure another.’
We merely suggest to the Respondent that he might well take a critical look at his tactics and policy and procedures in his utilization of his license as a lawyer and answer truthfully to himself the question - ‘Am I fulfilling my duty as a lawyer?’
“The Panel has received and has reviewed and studied the briefs prepared and filed by counsel for the State and counsel for the Respondent. They are most helpful. Unfortunately, there are not many decided cases upon the points we are now considering. Most of the cases deal with the application of Federal Rule 11, our KSA 60-211. The case of Miller v. Schweickart, 413F Supp (1059) (1061) (USDC-SDNY-1976) is cited by both counsel and thoroughly dissected. It involved a complaint in a class action and the Court said
‘Lawyers have a responsibility before subscribing their name to complaints which contain serious charges to ascertain that a reasonable basis exists for the allegations, even if they are made on information and belief — Unverified hearsay based on rumor is not sufficient upon which to subject one to the burdens of complex litigation and heavy legal costs, (underlining added)’
We recognize this case is not directly in point for it refers to a complaint and not a motion or subsidiary pleading. But, we are of the opinion the wording is peculiarly applicable to this case. The Respondent contends he did have a reasonable basis for his allegations, namely a co-counsel, his investigator and informant, and a third party. But, the inferences and innuendos and conclusions of those parties had been directly controverted by certain of the witnesses named by the Respondent in his Motion for a New Trial. The Respondent chose to ignore the direct negation by the witness, of which he had personal knowledge, and based his affidavit upon the erroneous information given to him by those whom he chose to believe.
“We point out that KSA 60-211, which refers to pleadings is made applicable to all ‘motions and other papers’ by KSA 60-207(B). See also Fed Rule 11 and 7 and U.S. ex rel Foster Wheeler Corp v. American Surety Co. 25 F Supp 225 (EDNY1938) and Wright & Miller Fed Practice & Procedure, Vol 5, Par 1332.
“And in the article ‘Honesty in Pleading and its Enforcement’ by D. Michael Risinger, Minnesota Law Review - 1976, Vol 61, Page 1 of his conclusion, the author states with respect to Rule 11 (KSA 60-211)
‘Rule 11 seeks to obtain honesty in pleadings by requiring the signature of an attorney and by requiring that there be good ground to support the document signed. Good ground cannot exist as to any alleged proposition known to be false, including a denial: further, an attorney must engage in reasonable investigation to determine the probability of any proposition he proposes to allege in a pleading or other document, (underlining added)’
“We cannot accept the Respondent’s argument of ‘reasonable basis’ when certain of the named witnesses had personally advised the Respondent that they had no knowledge or information on the matters sought to be elicited or that they would not testify as stated by the Respondent in the affidavit.
“We have also considered Respondent’s procedural objections and contentions. In our opinion the issue is not whether the trial court was misled but rather is whether the Respondent knowingly made false statements to the Court in his Motion for a New Trial, and we have found from the evidence that the Respondent did knowingly make such false statements.”
We have said a disciplinary action is more serious than a civil action, State v. Johnson, 219 Kan. 160, 546 P.2d 1320 (1976), and charges must be established by substantial, clear, convincing and satisfactory evidence. State v. Hoover, 223 Kan. 385, 574 P.2d 1377 (1978); State v. Johnson, 219 Kan. 160. In addition, it is well established the Board’s findings and recommendations are advisory only and are not binding on the court. State v. Johnson; In re Phelps, 204 Kan. 16, 459 P.2d 172 (1969), cert. denied 397 U.S. 916 (1970). This court has the duty in a disciplinary action to examine the evidence and determine for ourselves the judgment to be entered. State v. Klassen, 207 Kan. 414, 485 P.2d 1295 (1971).
We have carefully and painstakingly reviewed the voluminous transcripts and exhibits and conclude there is clear and convincing evidence to support the panel’s finding that the respondent violated: DR 1-102(A)(4); DR 1-102(A)(5); DR 7-102(A)(5); and K.S.A. 60-211.
In addition, a study of the transcripts, particularly that of the trial of Robinson v. Brady, convinces us that Fred W. Phelps, Sr. meant it when he told Carolene Brady he had wanted to sue her for a long time. The trial became an exhibition of a personal vendetta by Phelps against Carolene Brady. His examination was replete with repetition, badgering, innuendo, belligerence, irrelevant and immaterial matter evidencing only a desire to hurt and destroy the defendant. We note the panel’s discussion of DR 7-102(A)(l) and its observation that the record and testimony show “a course of conduct by the Respondent that indicates the Respondent may have ceased to be an advocate for his client and may be embarked upon a personal vendetta against some persons and is using his position as a lawyer as a weapon.” (Emphasis added.) The panel declined to make such a specific finding. We, however, are not bound by the failure to make such a finding. The formal complaint lodged against Phelps states: “That the Motion for New Trial (Attached J) clearly misrepresents the truth to the court and holds a defendant up to unnecessary public ridicule for which there is no basis in fact.” We have examined the record and transcripts from Robinson v. Brady, which were made exhibits by the panel and are properly before this court as part of the record in the disciplinary case. This record unquestionably supports a finding that Phelps’ action in filing the motion for new trial attempted to hold Mrs. Brady up to unnecessary public ridicule. Additionally, we find the entire record before us clearly supports a violation of DR 7-102(A)(l).
Respondent claims he was denied due process when the panel denied his motion for discovery. We find the panel’s ruling correct. The panel hearing is a type of discovery, with lenient rules to permit respondent to present any defense he might have to the complaint. Respondent relies upon Brotsky v. State Bar, 57 Cal. 2d 287, 368 P.2d 697, 19 Cal. Rptr. 153 (1962), to support his claim. This case, however, recognizes the existence of a California state statute allowing discovery in this type of proceeding. See Cal. Bus. & Prof. Code § 6085 (West). Kansas law is distinguishable because we have no statutory requirements for discovery under such circumstances. Additionally, we note with approval a recent Indiana case holding denial of discovery in a disciplinary proceeding is not an unconstitutional denial of due process. Matter of Murray, 266 Ind. 221, 362 N.E.2d 128 (1977). We find the respondent had proper notice of the nature and extent of the complaint and that the hearing was fairly and properly conducted by the panel.
Respondent argues his motion for a new trial and allegations therein referring to proffered evidence are no more than a normal proffer. We do not agree. An oral proffer during the course of a trial is made for the purpose of preserving the record. K.S.A. 60-243(c). The reference to witnesses and their testimony in a motion for a new trial is an attorney’s representation to the court that a new trial should be granted because of the quality of proof available. The motion is prepared in the attorney’s office and should be carefully and studiously drafted. It is an attorney’s representation to the court and is contemplated by K.S.A. 60-211.
The final determination for the court is the proper discipline for respondent’s violations of the Code of Professional Responsibility. In this regard, we note it is proper to consider an attorney’s previous record concerning professional conduct. State ex rel. Okl. Bar Ass'n v. Hensley, 560 P.2d 567 (Okla. 1977). See also Selznick v. State Bar, 16 Cal. 3d 704, 547 P.2d 1388, 129 Cal. Rptr. 108 (1976). Phelps was suspended from practicing law for a period of two years for unprofessional conduct in 1969. In re Phelps, 204 Kan. 16. The seriousness of the present case coupled with his previous record leads this court to the conclusion that respondent has little regard for the ethics of his profession. In his attorney’s oath, Fred W. Phelps, Sr. swore as follows:
“You do solemnly swear that you will support and bear true allegiance to the Constitution of the United States and the Constitution of the State of Kansas; that you will neither delay nor deny any man his right through malice, for lucre, or from any unworthy desire; that you will not knowingly foster or promote, or give your assent to any fraudulent, groundless or unjust suit; that you will neither do, nor consent to the doing of any falsehood in court; and that you will discharge your duties as an attorney and counselor of the Supreme Court and all inferior courts of the State of Kansas with fidelity both to the court and to your cause, and to the best of your knowledge and ability. So help you God.” Rule No. 702 (h) (224 Kan. cxxxviii).
He has disregarded that oath, and violated the Code of Professional Responsibility and K.S.A. 60-211. The practice of law is a privilege rather than a right and by his conduct, respondent has forfeited his privilege. We find he should be disciplined by disbarment and assessed the costs of this action.
BY ORDER OF THE COURT, dated this 20th day of July, 1979.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal prosecution in which the defendant, Derea L. Marks, Jr., was convicted of eight felonies. Two separate cases containing multiple counts were tried together. In case 77 CR 1832, the defendant Marks was charged with felony murder, which allegedly occurred in the course of an aggravated robbery of the Wichita Public Scales Station in Wichita on July 18, 1977. Count 2 of that case charged the defendant with the aggravated robbery. The defendant Marks was later charged in case 77 CR 2540 with six separate felonies, consisting of four counts of aggravated robbery (K.S.A. 21-3427) and one count each of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701[a]).
The charges stem from a burglary and a series of robberies in Wichita during July and August of 1977, beginning with the burglary of the OTASCO store on July 7, 1977, when several handguns were taken, including a .32-caliber pistol later connected with the defendant. Counts 1 and 2 of case 77 CR 2540 charged the defendant with burglary and theft of the OTASCO store. At the trial defendant fully admitted his participation in that burglary. On July 9, 1977, the defendant and a juvenile associate, Willie Richardson, robbed the Universal Service Station in Wichita. For this robbery, the defendant was charged in count 3 of case 77 CR 2540. At the trial defendant admitted his participation in that robbery. On July 13, 1977, defendant and Willie Richardson robbed the Hi-Quality Service Station in Wichita. This robbery was the basis for count 4 of case 77 CR 2540.
On July 18, 1977, defendant and Richardson entered the Wichita Public Scales Station allegedly to commit another robbery. The State claimed that the operator of the station, Virgil C. George, was murdered in the course of the robbery. As noted above, this homicide and robbery are the charges contained in counts 1 and 2 of case 77 CR 1832. On July 21, 1977, defendant and Richardson robbed the Quik Chik in Derby, Kansas. This robbery was the basis for count 5 of case 77 CR 2540. At the trial the defendant admitted his participation in that crime. Finally, on August 1, 1977, the defendant and Richardson robbed the Sears Store in Twin Lakes Shopping Center in Wichita. This robbery was the basis for the charge contained in count 6 of case 77 CR 2540. As noted above, the two cases were consolidated for trial and the defendant was convicted on all eight counts contained in the two informations. The defendant has appealed to this court claiming trial errors. We will consider each point separately.
I. Denial of Defendant’s Motion to Suppress the Gun as Illegally Seized Evidence.
Prior to the trial, the defendant filed a motion to suppress as evidence a .32-caliber pistol taken by police officer Rod Stovall from the defendant’s possession on August 6,1977. This handgun was an important piece of evidence in the case because, following its seizure by officer Stovall, tests made at the Wichita police forensic department established it to be the same gun used in the robbery and shooting death of Virgil C. George at the Wichita Public Scales Station on July 18, 1977. A Jackson v. Denno hearing was held on the motion to suppress prior to the trial. The undisputed evidence established the following facts: On August 6,1977, police officer Stovall was driving his police vehicle in the area of the 900 block of North Volutsia in Wichita. He noticed defendant Marks and Richardson seated in defendant’s car parked on the side of the street. As the officer pulled alongside the vehicle, he thought the two young men in the car matched the general description of two men, mentioned in an earlier police dispatch, who were wanted in connection with criminal activities. The police dispatch had described the two wanted men as black males, in their late teens or early twenties, with medium afro haircuts, and weighing somewhere in the area of 150 to 160 pounds. The police officer testified that he stopped his vehicle and walked over to the parked car to “check them out.” The police officer admitted that he had no information indicating that the individuals in the car were committing any crime or that they had committed any crime. The police officer did not know either one of the two individuals personally and, as they were seated in the car, he could not observe their bodies from their shoulders down. He could not see whether they were fat or slender. At the time the officer approached the vehicle, he did not feel that his life was in danger. He had no knowledge of any contraband in the vehicle and was not concerned about the two men fleeing or destroying any contraband. The police officer had in mind only that the two men in the car fit the general description of the two individuals mentioned in the police dispatch who were wanted by the police.
As officer Stovall approached the car, the defendant was in the driver’s seat. Richardson was seated to his right. The officer asked the defendant for his name and some identification. In response to the request, the defendant lifted up an arm rest in the middle of the front seat between him and Richardson. When defendant lifted up the arm rest, the officer observed a handgun lying on the seat. The officer saw the defendant reach in the direction of the gun. The officer then drew his own handgun from its holster and ordered defendant not to touch the gun. The officer then seized the gun and arrested the defendant for illegal possession of a weapon in violation of the Wichita city ordinances. Defendant Marks was taken to the police station and later released on his own recognizance. The police retained the gun until the ballistics test had been completed. It was determined that the gun was one of several stolen in the July 7, 1977, burglary of the OTASCO store. The defendant was never charged with a municipal ordinance weapons violation. On August 9, 1977, the defendant was charged in case 77 CR 1832 with felony murder and aggravated robbery of the Wichita Public Scales Station.
Following the presentation of this evidence by the State, the defendant’s motion to suppress the gun as evidence was denied by the district court. The trial judge, in denying the motion to suppress, stated:
“THE COURT: As to the motion to suppress, a very interesting motion, extremely interesting ease. And I certainly agree with Mr. Hayes when he says this was not a stop-and-frisk. It wasn’t. It wasn’t an arrest. And it wasn’t a search. It was simply an officer asking, according to his testimony, if two individuals who he said might be . . . someone he was looking for — could show identification. It was not an order to get out of the car or produce their identification. There was no search. And once the weapon was exposed as a result of that request, the officer, of course, was within his rights to seize it for his own protection, if for no other reason.
“There is;nothing that I know of in the law that prevents an officer from asking a citizen a question.
“Now it may well be that the citizen might say, if there was no basis for it (Do you have a driver’s license?), the citizen might say, ‘Well, it isn’t any of your business.’ Then if the officer tried to force himself, we might have another point. But the only evidence in this case is, he said, ‘Have you got any identification?’ . . .
“There is no evidence of any other response, except the sudden exposure of a weapon.
“The motion is overruled.”
At the trial the gun was admitted into evidence over defendant’s objection.
Defendant Marks contends that the trial court erred in denying his motion to suppress evidence because the police officer obtained possession of the firearm in violation of defendant’s right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution. The defendant maintains, in substance, that because officer Stovall had insufficient information to suspect the defendant and Richardson of any criminal activities, past or present, the officer was acting unreasonably in approaching defendant’s car and requesting defendant’s name and identification. The defendant then reasons that, because the officer had no right to approach the defendant and ask for identification, the firearm which he observed when the defendant lifted up the arm rest could not be lawfully seized under the plain view doctrine.
As noted above, the district court held the officer’s request to the defendant for identification to be a proper police investigation. We agree with the trial court. It was not a “stop and frisk” under K.S.A. 22-2402, which requires a “reasonable suspicion” that a crime has been committed. Defendant’s argument that the description of the two men in the police dispatch was insufficient to support probable cause for an arrest or the reasonable suspicion required for a stop and frisk is inapplicable in this case. Officer Stovall did not approach the defendant to arrest him or to search him. He approached the defendant because he thought defendant might be one of the two young men described in the police dispatch. Officer Stovall’s actions were purely investigative and, in our judgment, not improper. While the description of two young, black men of medium height, with medium afros, is admittedly vague, to preclude an officer from asking the name and identification of an individual falling within such a general description would make criminal investigations impossible.
In Brown v. Texas,_U.S__, 61 L.Ed.2d 357, 99 S.Ct. 2637 (1979), a defendant was convicted under a Texas statute making it a crime for a person to intentionally refuse to report his name and address to a police officer, who has lawfully stopped the person and requested such information. The defendant was asked by a police officer for identification which he refused to provide. He was then arrested, charged, and convicted of a violation of the Texas statute. The United States Supreme Court held that the defendant’s conviction under the Texas statute should be set aside, since the stopping of the defendant by the police and requiring him to identify himself violated the Fourth Amendment. The court reasoned that since the officer admittedly stopped the defendant purely to obtain his identification and had no reason to suspect that the defendant was engaged in criminal conduct, the stopping was an unreasonable seizure of his person. Brown makes it clear that when a police officer, without arresting an individual, stops and restrains him for the purpose of having him identify himself, that constitutes a seizure of his person subject to the Fourth Amendment. It is stated in the opinion that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person, and the Fourth Amendment requires that the seizure be reasonable. United States v. Brignoni-Ponce, 422 U.S. 873, 45 L.Ed.2d 607, 95 S.Ct. 2574 (1975). In Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979), it was held that a police officer did not have an unfettered discretion to stop an automobile to conduct a license check, unless the stopping was pursuant to a plan embodying explicit limitations on the conduct of individual officers.
For purposes of the Fourth Amendment, the reasonableness of a seizure of a person that is less intrusive than a traditional arrest depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers. Dunaway v. New York, 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248 (1979); Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). We have concluded that the holding in Brown v. Texas is not applicable to the case now before us. Here officer Stovall did not stop the automobile in which the defendant and Willie Richardson were seated; the automobile was parked at the time the officer first observed it. Officer Stovall did not approach the defendant to arrest him or to search him. There was no stopping or detention of the defendant and, hence, there was no seizure. Under all of the factual circumstances, we hold the police officer had the right to approach the defendant in the car for the purpose of questioning defendant in the course of a criminal investigation. State v. Holthaus, 222 Kan. 361, 564 P.2d 542 (1977); State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976). Since the officer had a right to be where he was at the time he observed the gun and the defendant’s hand moving toward it, the plain view doctrine applied and the gun could be seized without a warrant.
We hold that the police officer acted reasonably in seizing the weapon. The knowledge he had of the general description of the two young men wanted by the police, coupled with the sudden appearance of a pistol in a car occupied by two youths and the movement of defendant’s hand toward the weapon, clearly placed the officer in a position of great peril. There was no time for the police officer to get a search warrant. Officer Stovall testified that he immediately arrested the defendant for unlawful possession of a weapon. It is not clear from the record whether the arrest was for the carrying of an unconcealed loaded weapon or the concealment of an unloaded weapon, both of which are violations of the Wichita city ordinances. The fact that the record does not disclose whether or not the weapon was loaded or whether the defendant was ever tried for a violation of a city ordinance does not render the seizure of the weapon by the officer unlawful. Under all of the circumstances, we find that officer Stovall had reasonable grounds for believing that a weapons violation had been committed. It cannot be denied that exigent circumstances were present, requiring officer Stovall to act promptly to protect himself. We hold that the trial court did not err in denying defendant’s motion to suppress the firearm as evidence in the case.
II. Failure to Instruct the Jury on Self-defense, Voluntary Manslaughter, and Involuntary Manslaughter.
As his second point on the appeal, the defendant contends that the trial court committed reversible error in failing to instruct the jury on self-defense, voluntary manslaughter, and involuntary manslaughter. In considering this point, we should first consider the testimony presented at the trial and the theories of both the prosecution and the defense.
In proof of its case, the State presented the testimony of Willie Richardson. Richardson testified on direct examination that he and defendant conspired to rob the Wichita Public Scales Station; that they entered the station for that purpose; that they waited until the last customer had left the premises; and that at that time the defendant pulled a gun, demanded money from Virgil George, and started to walk behind the counter. According to Richardson, George told defendant he was not supposed to be behind the counter and apparently started to reach for a drawer whereupon Richardson ran from the station to the defendant’s car and got down between the seats. A few minutes later, the defendant ran to the car and they drove away. On cross-examination by defense counsel, Richardson admitted he had given contradictory versions of what happened in a prior statement to the police department, at his own trial in juvenile court, and at the preliminary hearing in this case. Richardson admitted that in a statement he gave to the police department, he stated that George said, “Nigger, get out of my place,” and that he saw George hit the defendant with a cane. Richardson further admitted that he had previously stated that there was no prior agreement to rob the scales station and that he and defendant had entered the scales station only to purchase some pop. Another witness, Eddie Bryson, testified that, at a time when he and Willie Richardson were in jail, Richardson had told him that he and his partner went to the place to rob the man, the man raised his cane, and his partner “Larry” shot the man and then they left. It was the State’s theory of the case that the defendant Marks had shot Virgil George in the course of an armed robbery.
The theory of the defense, at all times during trial, was that defendant was not present when Virgil George was killed. The defendant testified that he had known Virgil George five or six years prior to the crime and that he and Richardson had stopped at the scales station to get something to drink because it was hot. He talked with Virgil George, stayed a little longer, and then left to go to an auto parts store to get a part for his car. Defendant denied that he knew what happened to George after he left. He denied that he had a gun. He later saw Richardson and noticed that Richardson had a knot and bruise on his head and also on his forearm. Defense witness Jerry Marks testified that Richardson had stated on the evening of the homicide that the man was hitting him with a cane, the man did not stop, and he shot him. Jerry Marks and Mavis Scott also testified they saw bruises on Richardson’s head and forearm which defendant testified were not there before Richardson entered the scales station.
At the time of his death, Virgil George was disabled by a hip injury and had to use a cane to get around. Ronald Eggleston of the Wichita police department testified that, after the homicide, Virgil George’s cane was broken with parts scattered around the scales station. Marie McDonald testified that Virgil George was not abusive to people but sometimes used the word “niggers.” Lester Shotwell testified that George had a temper and would sometimes use profanity to express his anger.
Defendant contends that this evidence was sufficient to justify an instruction on self-defense. As noted above, at the trial the defense took a firm position that defendant was not present when George was killed. Defendant contends on appeal that, assuming he was present and shot George, the shooting might have been in self-defense and, therefore, it was reversible error for the court to fail to give a self-defense instruction to the jury. In support of his position, the defendant relies on State v. Smith, 161 Kan. 230, 167 P.2d 594 (1946), where this court held that theftrial court erred in not giving a self-defense instruction, notwithstanding the fact the accused denied she committed the act which caused the death. We have concluded that the evidence presented in this case was not sufficient to require an instruction on self-defense. We recognize that K.S.A. 21-3211 authorizes a person to use force against an aggressor to the extent it appears reasonably necessary to defend himself against the aggressor’s imminent use of unlawful force. However, it is well settled that a person cannot use greater force than is reasonably necessary to resist the attack and, furthermore, that self-defense is not available to a person who is committing or attempting to commit a forcible felony. See K.S.A. 21-3214; State v. Cates, 223 Kan. 724, 729, 576 P.2d 657 (1978).
In this case, it is important to note that, in his prior statement to the police, Richardson stated that George made the statement, “Nigger, get out of my place” and raised his cane and started hitting the defendant. The words purportedly used by George do not indicate an intent to inflict bodily harm but only to compel the defendant to leave the premises. Here the use of a gun by a young man to repel an attack by a disabled 65-year-old man with a cane would be excessive as a matter of law. It was, therefore, not improper for the trial court to fail to instruct the jury on self-defense on the basis of prior statements made by Richardson, the truth of which he categorically repudiated at the trial.
The defendant next asserts that it was reversible error for the trial court to fail to instruct on voluntary and involuntary manslaughter. Under K.S.A. 21-3107(3), a trial court is required to instruct on any lesser crime when there is evidence introduced under which the defendant might be reasonably convicted of the lesser offense. Such an instruction is required even though such instructions have not been requested or have been objected to. Ordinarily, in a felony-murder case, where the evidence of the commission of the felony is clear and uncontroverted, no instruction on lesser degrees of homicide should be given. State v. Bradford, 219 Kan. 336, 342, 548 P.2d 812 (1976). Where, however, the evidence of the underlying felony is weak or inconclusive, instructions on lesser or included offenses should be given if the evidence would support a conviction on such lesser crimes. State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978).
The defendant maintains that the evidence set forth above was sufficient to require the trial court to instruct on the lesser crimes of voluntary and involuntary manslaughter. We do not agree. We have concluded that the evidence in the record before us was not sufficient to require instructions on the lesser offenses of voluntary or involuntary manslaughter. It must be emphasized that Willie Richardson’s trial testimony was that he and defendant Marks entered the scales station with the intent to commit a robbery, that defendant demanded money from Virgil George, and that defendant shot George when he reached toward a drawer. The defendant’s testimony was that he was not present when the victim, Virgil George, was shot. The testimony of his witnesses tended to show that it was Willie Richardson who shot Virgil George after the defendant Marks had left the premises. There was no testimony by any witness to justify or support a conclusion that the defendant was guilty of either voluntary or involuntary manslaughter. If Virgil George was killed by either defendant Marks or by Willie Richardson in carrying out a conspiracy to commit a robbery then the defendant would be guilty of felony murder. If the jury should conclude that there was no prior conspiracy to commit a robbery and that Richardson shot George on his own, defendant Marks could not be held criminally responsible for the acts of Willie Richardson since Marks would not be liable as an aider or abettor.
We further have concluded that the evidence brought forth on the cross-examination of Willie Richardson that he had made contradictory statements to the police, at his own trial, and at the preliminary hearings was not sufficient to require instructions on voluntary and involuntary manslaughter. In order for the evidence to be sufficient to require instructions on lesser degrees of the homicide, the testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed. Contradictory statements of a witness which are offered only for the purpose of destroying his credibility and not as positive evidence to prove the matters contained in the statements are not alone sufficient to require an instruction on the lesser degrees of homicide. In all of the cases where we have required instructions on the lesser degrees of homicide in a felony-murder case, there has been positive testimony of either the defendant or another witness offered for the express purpose of proving a particular version of how the homicide occurred. This was the situation in Bradford, in State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975), and in each of the other cases where the rule has been applied.
It should be noted that in this case the trial court gave an instruction on second-degree murder over the objection of the defendant. Defense counsel objected to an instruction on second-degree murder because he contended there was no evidence to support it. We agree with defense counsel that an instruction on second-degree murder was unnecessary as beyond the scope of the evidence. Although the trial court’s instruction on second-degree murder was not required by the court, the giving of such an instruction was error favorable to the defendant. He was not prejudiced by it and hence cannot now complain. State v. Warden, 224 Kan. 705, 708, 585 P.2d 1038 (1978), cert. denied 441 U.S. 948 (1979).
To summarize, under the credible evidence presented in the record, the defendant was either guilty of a felony murder committed during the course of a planned robbery either by himself or Willie Richardson, or the defendant was not guilty. The issue was properly submitted to the jury who found defendant guilty of aggravated robbery and felony murder. We find no error in the instructions given to the jury by the trial court in this case.
III. Admission of Lineup Identification.
As his third point, the defendant contends that the trial court erred in overruling his objection to evidence of identification of defendant as the robber, based upon a lineup where defendant’s counsel was not notified and afforded an opportunity to be present. As noted above, the defendant was charged in a complaint filed on August 9,1977, with the felony murder of Virgil C. George and the aggravated robbery of the Wichita Public Scales Station. This charge was filed shortly after the weapon taken from defendant’s possession by officer Stovall was tested and determined to be the same gun which fired the bullet killing Virgil C. George. Following the filing of case 77 CR 1832, G. Edmond Hayes was retained as counsel to represent defendant Marks. On November 9, 1977, Mr. Hayes appeared on defendant’s behalf at his preliminary hearing. On November 15, 1977, a lineup was held concerning the robberies with which the defendant was subsequently charged in case 77 CR 2540. At the lineup, the defendant was viewed and identified by the victims as one of the robbers in the Universal, Hi-Quality, and Sears robberies. Mr. Hayes was not notified of the lineup. On November 16, 1977, defendant was charged with the other robberies in case 77 CR 2540. These two cases were subsequently consolidated for trial.
Defendant contends that because of the consolidation, defendant’s right to counsel in the second case attached with the initiation of prosecution in the first case. Failure to notify or provide counsel for the subsequent lineup is challenged as violating defendant’s constitutional right to counsel. The defendant makes no showing that the lineup was unduly suggestive, nor does he allege any prejudice. We hold this point to be without merit. The right to counsel at a post-indictment, pretrial lineup is limited to lineups for identification by witnesses to the crime for which he is presently charged. The right does not extend to lineups conducted in the investigation of other independent crimes, even though the defendant is in custody on the prior charge. In State v. Estes, 216 Kan. 382, 532 P.2d 1283 (1975), the defendant was free on bond for a previous armed robbery. Subsequently, a lineup was held and he was identified as a perpetrator of another inde pendent robbery of which he was convicted in the case then on appeal. The defendant raised the issue that he had been denied representation of counsel at the lineup. The contention of denial of representation by counsel at the lineup was rejected, since, at the time of the lineup, the defendant by his own testimony was not under arrest on the charges for which the lineup was conducted. The same issue was presented in Boyd v. Henderson, 555 F.2d 56 (2nd Cir. 1977), which held that the Sixth Amendment right to counsel at a lineup attaches only when there has been a formal charge with respect to the particular crimes as to which the suspect is being identified. The fact that the defendant was represented by counsel in connection with other unrelated crimes was irrelevant. We have concluded that defendant’s claim of error concerning the pretrial lineup identification must be rejected.
IV. Failure to Compel Completion of Discovery and Permitting Late Endorsement of a Witness.
As his fourth assignment of error, defendant claims that he was surprised and prejudiced by the late endorsement of Eddie Bryson as a witness for the State. The defendant also contends that his right to the effective assistance of counsel was violated by the trial court’s failure to compel production of the criminal records of State witnesses prior to the trial. These arguments center around the testimony of Eddie Bryson, who was in the Youth Holding Center in Wichita with Willie Richardson when Willie Richardson was awaiting trial for the killing of Virgil C. George. During that period, Richardson told Bryson that Virgil George had raised his cane and that the defendant Marks had shot George. Bryson gave a signed statement to this effect to a Wichita detective. At Richardson’s previous trial in juvenile court, Bryson denied the truth of the statement. In the interim, Eddie Bryson had decided to change his testimony and did so at the trial of the defendant Marks. We note from the record that Bryson was endorsed as a State’s witness two days before he actually testified and further that defendant’s counsel had in his possession the criminal records of both Richardson and Bryson prior to their taking the stand. In the cross-examination of both Bryson and Richardson, defense counsel thoroughly questioned them as to their past criminal records. We cannot say that the defendant has shown that he was prejudiced in any way, either by the late endorsement of Eddie Bryson as a State witness or by the delay in delivery of the criminal records of Bryson and Richardson. Defendant’s counsel was afforded an opportunity to interview Bryson before he testified. Since no prejudice has been shown, we reject the defendant’s fourth point as a basis for reversal of the case.
V. Failure to Give a Limiting Instruction on the Limited Purpose of Prior Crimes Evidence.
Defendant’s fifth point of error is that the trial court erred in failing to give a limiting instruction pertaining to the testimony of Willie Richardson as to his and the defendant’s intent to rob an audio parts store with a pistol. At the trial, Richardson testified that he and the defendant had conspired to rob an audio parts store and that, once inside the store, Richardson observed a pistol in the defendant’s pocket, but that they did not attempt to rob the store as the defendant thought there were too many people coming and going. The defendant and Richardson then proceeded to the Wichita Public Scales Station where the homicide of Virgil C. George occurred. Defendant argues that, if the defendant was not charged with conspiracy to rob the audio parts store, the evidence was admissible only under K.S.A. 60-455 and, therefore, a limiting instruction was required under State v. Roth, 200 Kan. 677, 680, 438 P.2d 58 (1968). From a reading of the record we have concluded that the testimony was properly admissible independently of K.S.A. 60-455, as part of the res gestae of the crime of aggravated robbery of Virgil C. George at the Wichita Public Scales Station. The purpose of this evidence was to show the relationship between the defendant and Richardson just prior to the time they entered the Wichita Public Scales Station. It was also relevant to show that the defendant Marks, not Richardson, had possession of the weapon prior to the time of the scales station robbery. The evidence was clearly admissible independently of K.S.A. 60-455. See State v. Martin, 208 Kan. 950, 952, 495 P.2d 89 (1972).
VI. Trial Court’s Refusal to Grant Defendant’s Motion for a Mistrial or a New Trial.
The defendant’s sixth and final point on the appeal is the trial court’s refusal to grant either a mistrial or a new trial because cumulative errors denied him a fair trial. We have considered each of the claims of error and we cannot find that the trial court abused its discretion in failing to grant a mistrial or a new trial. State v. Bell, 224 Kan. 105, 108, 577 P.2d 1186 (1978), and State v. Rhodes, 219 Kan. 281, 283, 546 P.2d 1396 (1976).
The judgment of the district court is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found Rodney W. Jackson (defendant-appellant) guilty of one count of second-degree murder (K.S.A. 21-3402) and one count of unlawful possession of a firearm (K.S.A. 21-4204). Various trial errors are asserted on appeal.
The facts briefly summarized are these. On the evening of January 3, 1978, Cecil Richmond, a 65-year-old attendant employed at a self-service gas station at 2001 West 10th Street, Topeka, Kansas, was found murdered in the backroom of the station. The body was discovered by a customer, Jack Renne, at 8:50 p.m.
The initial investigation of the murder revealed that a change wallet was missing from the station, and the victim had been shot six times with a .22 caliber pistol. Police officers further discovered that a customer, Michael O’Connor, was in the station at 8:40 p.m. and left money on the counter when he was unable to find the attendant.
Kenneth Burnett, an employee of a nearby hardware store, testified at the trial. He said he was in the station at 8:35 p.m. and saw a black male, whom he identified as the appellant, there also.
Detective Russell Brooks of the Topeka Police Department testified his investigation revealed that Ms. Jessica Gill had walked past the station at approximately 8:30 p.m. and had seen the appellant inside. Shortly thereafter she walked back by and noticed the appellant standing at the cash register counting money. Cecil Richmond was alive at that time.
Finally, the preliminary investigation revealed the appellant had been charged with the armed robbery of a taxicab in December of 1976. With this information, officers obtained a warrant to search the appellant’s residence near Eskridge, Kansas.
On January 4, 1978, numerous detectives from the Topeka Police Department and officers of the Kansas Highway Patrol converged upon the appellant in Eskridge and arrested him at a location some distance from his home. Detective Leonard Ash-worth then read the appellant his Miranda rights.
Immediately thereafter Detective James Gilchrist administered a trace metal detection test. Detective Gilchrist testified he advised the appellant the test indicated he had held a firearm shortly before. Apparently the appellant stated he had used a pistol for target practice two days earlier. Officers then accompanied the appellant to his residence in order to obtain the pistol. The search warrant was subsequently executed.
The appellant was then transported back to Topeka. Detective Ashworth testified the appellant made certain incriminating statements to him en route to the police station after he was given a second Miranda warning. While the evidence is conflicting, the appellant eventually confessed to the murder of Cecil Richmond during his interrogation at the police station on January 4, 1978.
Before trial the appellant unsuccessfully moved to suppress his confession and the gun seized as a result of the search of his residence. The parties also stipulated to certain testimony to be given by law enforcement officials.
During the trial the appellant objected to Detective Ashworth’s testimony relating their conversations en route to Topeka on the basis no Jackson v. Denno hearing had been held. The objection was overruled; however, the appellant was given the reports containing the statements. His motions for dismissal and an instruction on the lesser charge of voluntary manslaughter were also denied.
The jury then found the appellant guilty of second-degree murder and unlawful possession of a firearm. Appeal has been duly perfected.
The appellant contends the search warrant and arrest were not supported by probable cause. Here the same facts were relied upon to provide probable cause for both the search and the arrest.
This court has previously ruled that evidence sufficient to support probable cause for an arrest on the part of an arresting officer is also sufficient to support a finding of probable cause by a magistrate in the issuance of a search warrant. State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972), rev’d in part 225 Kan. 38, 587 P.2d 861 (1978); see also State v. Stewart, 225 Kan. 410, 412, 591 P.2d 166 (1979). The burden is on the prosecution to show an arrest or a search and seizure was lawful and supported by probable cause. Once a court has issued a warrant or upheld a warrantless arrest or search as being supported by probable cause, a presumption of legality attaches. Consequently, one who attacks the validity of the probable cause determination carries the burden of persuasion. State v. Chiles, 226 Kan. 140, 595 P.2d 1130 (1979); State v. Nicholson, 225 Kan. 418, 423, 590 P.2d 1069 (1979) and cases cited therein.
In the instant case the search warrant was obtained on the basis of Detective Russell Brooks’ affidavit. More than sufficient evidence existed to establish probable cause. Two witnesses positively identified the appellant as present at the scene of the crime shortly before the body of the deceased was found. There was a strong probability the appellant was the last person to see the victim alive. In addition, the officers learned the appellant had been arrested previously for the armed robbery of a cab driver. That arrest had resulted in a negotiated plea of guilty to theft over $50. Therefore, we hold both the search warrant and the arrest were supported by evidence of probable cause.
The appellant further states the finding of probable cause is deficient due to several irregularities in the affidavit supporting the search warrant. This argument must fail. The challenged irregularities consist of a failure of the affidavit to specifically allege similarity between the circumstances of his prior conviction and present crime, and a misstatement of the plea to the prior charge as guilty rather than nolo contendere. Such technical irregularities do not affect the substantial rights of the accused pursuant to K.S.A. 22-2511. See also Brinegar v. United States, 338 U.S. 160, 175, 93 L.Ed. 1879, 69 S.Ct. 1302 (1949); State v. Jacques, 225 Kan. 38, Syl. ¶¶ 4, 5, 587 P.2d 861 (1978); State v. Ames, 222 Kan. 88, 92-3, 563 P.2d 1034 (1977). In view of our holding that the search warrant and the arrest were legal, we need not address the appellant’s contention that his statements as well as the seized items were fruits of the poisonous tree.
The appellant next asserts the trial court erred in admitting his written confession to the jury because it was involuntarily given. His argument is threefold: he contends he was coerced; he states he did not expressly waive his Miranda rights; and finally he asserts he lacked the mental capacity to intelligently and knowingly waive his rights. Under the rules recently enunciated in State v. White & Stewart, 225 Kan. 87, 92, 587 P.2d 1259 (1978); State v. Higdon, 224 Kan. 720, 722, 585 P.2d 1048 (1978); and State v. Gilder, 223 Kan. 220, 227-8, 574 P.2d 196 (1977), these arguments must fail. Moreover, the United States Supreme Court has held in North Carolina v. Butler, 441 U.S. 369, 60 L.Ed.2d 286, 99 S.Ct. 1755 (1979), a suspect in custody need not explicitly waive his right to counsel. Waiver can be inferred from the surrounding circumstances.
Here the appellant was informed of his Miranda rights at his arrest. Although he did not expressly waive his rights, he did not refuse to speak at that time and he did not ask for an attorney. While being transported from Eskridge to Topeka, the appellant was again advised of his Miranda rights. Finally Detective Ash-worth read the rights a third time at the initial stationhouse interrogation. The detective testified the appellant stated he understood his rights and wished to proceed. After initial questioning by Detective Ashworth the appellant eventually summoned Detective Donald Mogge and asked to speak with Detective James Gilchrist. Thereafter, the appellant told the detective three versions of what occurred on the night of the murder. Expressing disbelief at the first two versions, Detective Gilchrist testified that the third confession impressed him as truthful, and a written statement was then taken. After carefully observing the demeanor of the witnesses and hearing the testimony at the suppression hearing, the trial court concluded the confession and waiver of rights were knowingly, intelligently and voluntarily given. The appellant was shown to be rational and aware of what he was doing. Clearly he initiated the interview with the police that eventually led to his written statement. We hold substantial, competent evidence exists to support the trial court’s finding of voluntariness.
The appellant next argues the trial court erred in failing to declare a mistrial after Detective Ashworth testified from a report concerning certain incriminating statements made en route from Eskridge to Topeka. Apparently the appellant had told Ashworth four or five different stories regarding the origin of the pistol as well as an exculpatory version of the events at the service station. The existence of Ashworth’s report came as a surprise to all the parties. When the appellant’s counsel complained about the prosecution’s failure to comply with the discovery order, the trial court ordered the prosecution to provide a copy pursuant to K.S.A. 22-3212(7). The appellant was also granted the right to recall certain witnesses for further cross-examination in light of the new evidence.
As a general rule terminating a trial and declaring a mistrial is largely within the discretion of the trial court. A clear showing of abuse of discretion must be shown before the decision of a trial court will be set aside on appeal. State v. McCambry, 225 Kan. 803, 806, 594 P.2d 222 (1979).
The appellant views the statements as tantamount to a confession. He states that he suffered prejudice because the statements were incriminatory on the charge of unlawful possession of a firearm. The prosecution, on the other hand, contends the statements were essentially exculpatory.
This point is controlled by our recent decisions of State v. Taylor, 225 Kan. 788, 790, 594 P.2d 211 (1979); State v. Cook, 225 Kan. 259, 261, 589 P.2d 616 (1979); and State v. Sanders, 225 Kan. 147, 149-50, 587 P.2d 893 (1978). While the stories about the pistol tended to be incriminatory, the appellant’s statements both at the time of his arrest and during his interrogation clearly indicated his illegal possession of the pistol. Furthermore, the facts of his possession were incorporated into his final confession. Therefore, we hold no abuse of the trial court’s power of discretion in failing to grant the mistrial has been shown.
The appellant challenges the trial court’s refusal to instruct the jury on the lesser offense of voluntary manslaughter. In his signed confession the appellant stated that he was telling Cecil Richmond, the deceased, about an argument with his father. Richmond said to the appellant, “Rodney, no matter what, the man is your father. You have to respect him.” Upon hearing those words the appellant related that he “just went off” and shot Richmond six times with the pistol. The trial court relied upon our decision in State v. Ritchey, 223 Kan. 99, 573 P.2d 973 (1977) to find no evidence of sudden quarrel or heat of passion. See also State v. Coop, 223 Kan. 302, 307, 573 P.2d 1017 (1978).
It is well established a trial court is not required to instruct on a lesser offense of the crime charged if the evidence at the trial excludes a theory of guilt on the lesser offense. See generally State v. Taylor, 225 Kan. at 793; State v. Blue, 225 Kan. 576, 580, 592 P.2d 897 (1979); State v. Trujillo, 225 Kan. 320, Syl. ¶ 1, 590 P.2d 1027 (1979). We find no error in the trial court’s conclusion that evidence of a sudden quarrel or heat of passion sufficient to provoke an ordinary man to similar actions did not exist.
The appellant asserts, however, that his actions should be characterized as “unreasoning rage.” When so characterized, he argues the standard for reactions of an ordinary man should not be applicable in deciding whether to instruct on voluntary manslaughter. Instead, he desires an instruction which would test the reactions of a man with a low intelligence quotient and a history of mental disturbance. We note there was little evidence at the trial of the appellant’s mental problems.
This court finds no reason to abandon the objective standard for measuring sufficiency of provocation as stated in the Ritchey and Coop decisions. An objective standard precludes consideration of the innate peculiarities of the individual defendant. The fact that his intelligence is not high and his passion is easily aroused will not be considered in this connection. See People v. Pecora, 107 Ill. App. 2d 283, 246 N.E.2d 865 (1969), cert. denied 397 U.S. 1028 (1970); State v. McAllister, 41 N.J. 342, 196 A.2d 786 (1964); Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977); see also Perkins on Criminal Law 56, ch. 2 (2d ed. 1969). Thus, we hold the trial court did not err in refusing to instruct on voluntary manslaughter.
Finally, the appellant’s contention that under the totality of circumstances he was not accorded a fair trial lacks merit.
Accordingly, the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is an action brought by Thomas E. Butler against Westgate State Bank for damages arising out of breach of an alleged contract to make a loan. At trial, a jury awarded Butler $47,600, $40,000 of which was specified for lost profits. In response to the bank’s post-trial motion, the trial court set aside the jury’s award of $40,000, allowing the $7,600 judgment for plaintiff’s out of pocket expenses. Plaintiff appealed to the Court of Appeals from the trial court’s elimination of the $40,000. Defendant cross-appealed from the judgment for $7,600. The Court of Appeals reinstated the award for lost profits, relying upon this court’s decision in Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512 (1974). The court, however, found Butler was not entitled to the $7,600. Butler v. Westgate State Bank, 3 Kan. App. 2d 403, 596 P.2d 156 (1979). Westgate State Bank petitioned this court for review of the Court of Appeals decision.
A complete statement of the facts is not necessary as it is adequately reported in the Court of Appeals opinion. Briefly, plaintiff contacted Westgate State Bank to obtain a loan of $30,000 in order to buy the Kansas City area franchise of a telephone directories business, which advertised the businesses of local merchants. Plaintiff’s available assets were considered by the bank, including his future inheritance from his late father’s estate. The bank’s representative assured Butler the loan was approved and there would be no problem obtaining the money. Most of the details of the loan application were handled over the telephone, as the plaintiff was in Texas closing a franchise purchase. When Butler returned to Kansas City, he was informed the bank was turning down the loan because it could not be certain when his father’s estate would be settled. Plaintiff sued the bank and this appeal ensued.
The sole question presented to this court is whether the trial court erred in entering judgment notwithstanding the verdict, setting aside the jury’s award of $40,000 as damages for loss of business profits. The bank contends there is no substantial competent evidence to support such an award.
The Court of Appeals relied heavily upon this court’s opinion in Vickers v. Wichita State University, 213 Kan. 614. In that case, television station KTVH in Wichita had initially contracted with defendants Missouri Valley Conference for the televising of conference basketball games. KTVH assigned those rights to plaintiff Vickers’ production company. The agreement covered 9 or 10 games for each of the 1969-70, 1970-71, and 1971-72 seasons. Lengthy negotiations were held regarding the terms of the contract; however, the parties were unable to reach agreement. Defendants contacted another production company, whose president accepted the contract. Vickers brought an action for breach of contract and based his claim for damages on loss of profits.
This court found the trial court erred in limiting the evidence of future profits to a showing of past profits, and stated:
“This court follows the general rule that loss of profits resulting from a breach of contract may be recovered as damages when such profits are proved with reasonable certainty, and when they may reasonably be considered to have been within the contemplation of the parties. [Citations omitted.] Recovery for loss of profits caused by a breach of contract depends upon the facts and circumstances of each particular case.” 213 Kan. at 618.
“Absolute certainty in proving loss of future profits is not required. . . . It is the responsibility of a district court to see that speculative and problematical evidence does not reach the jury.” 213 Kan. at 620.
The court imposed the rule that profits must be determined with “reasonable certainty.” No specific guidelines were provided to aid in a proper showing of lost profits. The court stated only that the evidence presented be “the best available proof as to the amount of loss that the particular situation admits.” 213 Kan. at 620.
The sole evidence of lost profits was the testimony of George Schuler, the proposed seller of the franchise. He made a comparison between the Kansas City area and two areas he believed were similar in Texas. It should be noted that at no time did he personally manage or supervise the sales of telephone directories in the Kansas City area. He bought the area franchise from Better Business Pages (BBP), and then decided to discontinue the franchise in that area. In addition, it was noted in the testimony that plaintiff Butler had worked only as a field manager of sales operations for BBP in Kansas City and had no experience in managing the business.
Schuler stated that when he bought the franchise from BBP, he was informed of the profit, gross sales, accounts receivable, and the bad debts and production costs incurred while under the former company’s operation. He did not, however, discuss those financial statistics. He relied instead upon his comparison between the areas in Kansas City and the areas in Texas.
Schuler compared the Clay-Platte area to the Hunt County area covering Greenville and Commerce, Texas. He stated the population and the number of telephone directories distributed in those two areas were about the same. The Hunt County area had produced a profit of between $20,000 and $25,000 each year for the last six years. Schuler testified the White Rock area in northeast Dallas was similar to Wyandotte County. He testified, however, that he wasn’t certain of the exact number of directories the company published there. He admitted his estimate could be incorrect by as much as 15,000 or 20,000 directories. He stated that area was a little larger than the Wyandotte County area. He could not say whether the two areas were similar in the number of residential areas compared to the business and industrial areas. In addition, he had forgotten the comparison of income ratio per household. Schuler stated the yearly profit for one year was $35,000, the next year was $41,000, and he added those figures would be a little high for the Wyandotte County area.
Testimony indicated the profits of the telephone directory business in the Kansas City area might not have been as high when BBP was in control. Schuler testified the business had been poorly managed before he took over the operation.
We believe the evidence presented by Schuler was far too speculative to comply with the rule that lost profits must be proved with reasonable certainty. As stated earlier, there was no evidence from anyone who had managed the business in the Kansas City area before Schuler bought the business from BBP. BBP had been operating in that area for twelve months prior to Schuler’s decision to terminate the Kansas City operation. The business had produced one directory in each of the Clay-Platte and Wyandotte areas. The estimation of profits in the Hunt County region was based upon an average of profits realized over the prior six years. Schuler did not testify as to the number of years the business had been in operation in that area, nor did he testify as to the amount of profit he realized in the first year of operation. That evidence would be helpful in determining plaintiff’s possible profits as he launched a new business. Schuler’s estimate of the number of directories sold in the White Rock area was, by his own admission, possibly incorrect by as much as 15,000 or 20,000 directories. An error that large could greatly vary one’s profit margin for the year.
In Vickers v. Wichita State University, 213 Kan. at 619, we cited with approval the case of States v. Durkin, 65 Kan. 101, 68 Pac. 1091 (1902), in which we noted a factor to be considered in a showing of lost profits was the future operator’s capability in running the business. In the case at bar, testimony shows the business was experiencing losses due to poor management before Schuler took over. His experience and management techniques were evidently an important factor in the success of the business; yet, there was no evidence presented of Butler’s capability in running the operation.
After carefully considering the record and the testimony of Schuler, we find the evidence is not sufficient to establish, with reasonable certainty, plaintiff’s lost profits. The evidence presented is far too conjectural and speculative to be relied upon. This holding does not in any way change our opinion in Vickers regarding the rule that lost profits may be recovered for new businesses if they can be proved with reasonable certainty. We are, however, in agreement with the trial court that plaintiff is entitled to the jury award of $7,600 for out of pocket expenses.
Accordingly, we reverse the Court of Appeals and affirm the judgment of the trial court.
Fromme, J., not participating.
Holmes, J., dissenting.
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The opinion of the court was delivered by
McFarland, J.:
This is a direct appeal by the defendant, Starr Enterprises, Inc., from a November 9, 1977, conviction of the crime of promoting obscenity (K.S.A. 1978 Supp. 21-4301). Defendant was fined $2,500.00.
The defendant was charged with two counts of promoting obscenity by commercially exhibiting two motion picture films: “Ghost Town” and “Affair in the Air.” The defendant was acquitted as to “Affair in the Air” and convicted as to “Ghost Town.”
The defendant raises four issues on appeal. The first two issues deal with the constitutionality of the statute under which the defendant was convicted (K.S.A. 1978 Supp. 21-4301), and the last two issues involve whether the film “Ghost Town” was obscene under the same statute.
K.S.A. 1978 Supp. 21-4301(3) provides:
“It is a defense to a prosecution for obscenity that the persons to .whom the allegedly obscene material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing or viewing the same.”
In State v. Next Door Cinema Corp., 225 Kan. 112, Syl. ¶ ¶ 4, 6, 7, 587 P.2d 326 (1978), this court held:
4. “fn an appeal from a conviction of one count of promoting obscenity, K.S.A. 1977 Supp. 21-4301, the words scientific, educational and governmental contained in 21-4301(3) are sufficiently definite and are of such general usage and understanding that they adequately apprise members of the general public of the legitimate defenses available under the statute.”
6. In construing 21-4301(3) the language ‘other similar justification’ is found to be vague, indefinite and uncertain, neither adds to nor subtracts from the terms scientific, educational or governmental justification, is mere surplusage and may be stricken from the statute without violating the intent of the legislature.”
7. “K.S.A. 1977 Supp. 21-4301(3), absent the language ‘or other similar [justification],’ is constitutional and the omission of the quoted language does not render the remainder of the section or statute unconstitutional.”
The defendant asks this court to reconsider the Next Door Cinema decision, contending that the severance of “other similar justification” violates express legislative intent, judicially expands criminal liability and violates K.S.A. 21-3102(1) and the due process and equal protection clauses of the state and federal constitutions. The defendant further contends that the words “scientific, educational, governmental” are impermissibly vague.
These issues were before this court in Next Door Cinema and determined adversely to the defendant’s position. In Next Door Cinema, 225 Kan. at 116-117, this court stated:
“The language in the defenses portion of our statute was taken largely from the American Law Institute Model Penal Code and the New York Penal Law. Our section, 21-4301(3), is essentially identical to § 235.15-1 of the New York Penal Law. Two New York trial courts have considered and interpreted the defenses provision of the New York law. People v. Howell, 90 Misc. 2d 722, 395 N.Y.S.2d 933 (1977) and People v. Wrench, 83 Misc. 2d 95, 371 N.Y.S.2d 833 (1975). Both cases involved the sale of allegedly obscene magazines to members of the public. Appellant relies heavily on the decision in Howell where the court found the words ‘other similar justification’ to be unconstitutionally vague and indefinite and as a result the entire statute was held invalid. The New York court stated: “ ‘[T]he words “similar justification,” subdivision 1 of section 235.15 provides an affirmative defense without reasonably definitive limits. The Legislature cannot have intended to include possession for every use (that would wholly negate 235.05, subdivision 1) but the descriptive words are too vague for us really to know what possessions are not for “similar justification.” The net result is that the statute (235.05, subdivision 1, in combination with 235.15, subdivision 1) simply does not adequately advise the would-be seller of obscene material what sales are criminal and what are not.’ People v. Howell, 90 Misc. 2d at 727.
“The court in Wrench, after considering the underlying principles of statutory construction, determined that to uphold the constitutionality of the statute it had to be interpreted as allowing sales of obscene materials to all adults. The court stated at page 98:
“ ‘In order to sustain the constitutionality of the statute the court reads the affirmative defense afforded under subdivision 1 of section 235.15 of the Penal Law as authorizing sales to all adults and not a limited few.
“ ‘The court notes that the language itself admits of this interpretation since it provides for sale for “similar justification” in addition to the more limiting classification.’
Wrench was argued to the Howell court but that court was not impressed by the reasoning in Wrench and, rather than hold the statute constitutional on the basis of Wrench, found the statute unconstitutional.
“It is to be noted that the decisions in Howell, from the City Court of Buffalo, and Wrench, from the District Court of Suffolk County, were not appealed and we are not constrained to follow the reasoning of either of the New York trial courts.”
Whereas Howell was not appealed, a subsequent case from the same court, using Howell for authority, was appealed. In People v. Illardo, 97 Misc. 2d 294, 411 N.Y.S.2d 142 (1978), the phrase “other similar justification” was held to be another area of defense, not unconstitutionally vague, and not violative of the due process clause of the United States Constitution. Although this court did not rely on Howell for the determination of vagueness in Next Door Cinema, we have considered Illardo.
We adhere to the decision in Next Door Cinema which controls the two issues relative to the constitutionality of K.S.A. 1978 Supp. 21-4301(3).
The defendant’s third issue on appeal is whether obscenity as defined by K.S.A. 1978 Supp. 21-4301(2)(a) includes depiction of both actual and simulated ultimate sexual acts. The defendant contends that only depiction of actual sexual acts is proscribed by the statute and that the trial court erred in denying its motion for a directed verdict which was predicated on that contention.
K.S.A. 1978 Supp. 21-4301(2)(a) provides:
“Any material or performance is ‘obscene’ if the average person applying contemporary community standards would find that such material or performance, taken as a whole, appeals to the prurient interest; that the material or performance has patently offensive representations or descriptions of ultimate sexual acts, normal or perverted; and that the material or performance, taken as a whole, lacks serious literary, educational, artistic, political or scientific value.”
Miller v. California, 413 U.S. 15, 24-25, 37 L.Ed.2d 419, 93 S.Ct. 2607 (1973), set the boundaries of state regulation of obscenity as follows:
“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, .artistic, political, or scientific value. ... If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. [Citations omitted.]
“We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
“(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”
The defendant argues that the omission of the Miller phrase “actual or simulated” from the Kansas statute was the result of legislative intent to exclude simulated acts from liability. The defendant’s precise contention is as follows:
“All sexually oriented films ‘depict or represent’ sexual acts in some manner. The question under the Kansas statute, however, is not whether ‘ultimate sexual acts’ are suggested, nor whether the viewer might speculate whether the depicted sexual activities are suggested. Also irrelevant is the extent to which the viewer is persuaded that the actors are actually doing what they appear to be doing. The only relevant inquiry, for purposes of an obscenity statute, is whether ‘ultimate sexual acts’ are being revealed in the film so that the viewer is actually able to perceive them. The film involved in this case, ‘Ghost Town’, is simply not such a film.”
Webster’s New Collegiate Dictionary (1977) defines “simulate” as “to assume the outward qualities or appearance of, usually with the intent to deceive.” In general parlance a simulation is something which has been made to look like something else, a fake, such as a simulated diamond. The defendant argues that, as far as sexually oriented films are concerned, the industry’s definition is broader than just faked scenes. Also included in the industry’s definition are scenes depicting actual acts where by virtue of the positioning of the camera, the viewer cannot be positive whether the scene is real or faked. The State does not dispute that this is the industry’s definition and agrees that under such a definition all ultimate sexual acts contained within “Ghost Town” are simulated as the camera is not positioned in a manner to conclusively establish whether the scene is actual or faked.
The State argues that the omission of “actual or simulated” from the statute does not indicate a legislative intent to include only depiction of “actual” sexual acts within the ambit of the statute. The State contends that the use of the word “representation” in the statute includes both actual or simulated acts.
In support of its position the State cites the following:
“The common definition of the word ‘representation’ includes the following:
T. the act of representing. 2. the state of being represented. 3. the expression or designation by some term, character, symbol, or the like ... 9. presentation to the mind, as of an idea or image. 10. a mental image or idea so presented; concept. 11. the act of portrayal, picturing, or other rendering in visible form.’
The Random House Dictionary of the English Language, p. 1217 (Random House, 1973). The common definition of the word ‘represent’ includes the following:
T. to serve to express, designate, stand for, or denote, as a word, symbol, or the like does; symbolize . . . 7. to present or picture to the mind.’ Id.”
The effect of the omission of “actual or simulated” from a statute enacted in conformity with Miller apparently is an issue of first impression. If the defendant’s contentions are correct, apparently the only proscribed motion picture films would be those filmed by myopic cameramen. We do not believe this is the legislative intent. The proscribed conduct includes depiction of both actual and simulated ultimate sexual acts. If the legislature desires to limit the proscribed conduct to depictions of actual sexual acts, it may do so by appropriate statutory amendment. The trial court did not err in denying defendant’s motion for a directed verdict premised on the grounds that the portrayed sexual acts were simulated.
The defendant’s fourth issue on appeal is that the film, as a matter of law, cannot be obscene under the statutory “taken as a whole” tests (K.S.A. 1978 Supp. 21-4301[2][a]) as less than one-half of its total footage depicts ultimate sexual acts. The defendant contends the trial court erred in denying its motion for a directed verdict which was predicated on this ground.
K.S.A. 1978 Supp. 21-4301(2)(a) provides:
“Any material or performance is ‘obscene’ if the average person applying contemporary community standards would find that such material or performance, taken as a whole, appeals to the prurient interest; that the material or performance has patently offensive representations or descriptions of ultimate sexual acts, normal or perverted; and that the material or performance, taken as a whole, lacks serious literary, educational, artistic, political or scientific value.” Emphasis added.
The defendant’s argument is as follows:
“Appellant respectfully submits that this court’s viewing of the film ‘Ghost Town’ will reveal that far less than half of the film involves depictions of simulated ultimate sexual acts. Accordingly, it is appellant’s position that this film could not be found obscene because, when ‘taken as a whole’, the film was not dominated by depictions of ultimate sexual conduct appealing to a prurient interest in sex. See Miller v. California, supra.”
The defendant cites no authority in support of the proposition that “taken as a whole” means that the majority of the total film footage must contain depictions of ultimate sexual acts. The phrase seems to be used to eliminate segmented reviews of material, as expressed in Penthouse Intern., Ltd. v. McAuliffe, 454 F. Supp. 289, 303 (N.D. Ga. 1978):
“First, the ‘taken as a whole’ standard of Miller is not really new, see Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and simply reflects in essence the practical fact that an arguably obscene book or magazine is going to be published or banned as a discrete unit. It is practically impossible and legally impermissible for defendant McAuliffe to tiptoe through each and every ‘Playboy’, ‘Oui’ and ‘Penthouse’ vended in Fulton County, scissors in hand, and to excise those portions of the magazine thought to be obscene. A magazine is a ‘whole’ within the meaning of Miller and it must be judged as such.”
The trier of fact is to judge the film as a whole in determining whether or not it is obscene. A few isolated film clips cannot be the sole basis of such determination. The entire film must be considered as a unit.
The contention that the film passes the “taken as a whole” tests if less than half of its footage is devoted to the depiction of ultimate sexual acts is without merit. Under this theory a 55 minute film including 28 minutes of totally black film and 27 minutes of ultimate sexual acts would as a matter of law pass the “taken as a whole” tests.
The trial court did not err in denying defendant’s motion for a directed verdict premised on the grounds that the film could not be obscene as a matter of law by virtue of the fact that less than half of the film was devoted to depiction of ultimate sexual acts.
In accordance with the requests of the parties the court has viewed the film and holds that the jury’s conviction of the defendant of the crime of promoting obscenity is supported by substantial competent evidence. Further findings are unnecessary as the defendant’s objection to the trial court’s denial of its motion for a directed verdict relates solely to the fact the film could not have been obscene as a matter of law because: (1) only “simulated” sexual acts were depicted; and (2) less than one-half of the film’s footage was devoted to the depiction of ultimate sexual acts.
The judgment is affirmed.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State on a question reserved from a district court ruling that K.S.A. 21-3405 (vehicular homicide) is unconstitutionally vague and indefinite.
The appellee, Charlene F. Randol, was found not guilty after a trial to the court on two counts of vehicular homicide. She was found not guilty for two reasons: (1) that she was not guilty of more than simple negligence and (2) K.S.A. 21-3405 is unconstitutional as being vague and indefinite. The district court held that the words “material deviation”, as used in the statute and as previously applied in decisions of this court, were so vague and indefinite that the statute violated the constitutional guarantees of due process. The State is not challenging the “not guilty” verdict and the sole question on appeal is the constitutionality of the statute. Under these circumstances it is not necessary to recite the facts other than to state that appellee was the driver of an automobile involved in a two-car collision in which both occupants of the other vehicle were killed.
K.S.A. 21-3405 reads:
“Vehicular homicide. (1) Vehicular homicide is the killing of a human being by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.
“(2) This section shall be applicable only when the death of the injured person ensues within one (1) year as the proximate result of the operation of a vehicle in the manner described in subsection (1) of this section.
“(3) Vehicular homicide is a class A misdemeanor.”
In construing the constitutionality of a statute there are certain familiar rules to be followed:
“Long-standing and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. (State, ex rel., v. Fadely, 180 Kan. 652, 658, 659, 308 P.2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266; Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506; and 16 Am.Jur.2d, Constitutional Law, § 175, pp. 399-401.)” Leek v. Theis, 217 Kan. 784, 792-793, 539 P.2d 304 (1975).
The vagueness test applicable to criminal statutes was set out in State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977):
“The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness.” p. 4.
See also Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hill, 189 Kan. 403, 369 P.2d 365 (1962).
The test, under Section 10 of the Kansas Bill of Rights, is the same as that applicable in determining whether a statute violates the due process clause of the Fourteenth Amendment to the federal constitution and was analyzed and discussed in State v. Hill, 189 Kan. at 410-411:
“It is well recognized that in order to satisfy the constitutional requirements of due process, a state statute must be sufficiently explicit in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty. The standards of certainty in a statute punishing for criminal offenses is higher than in those depending primarily upon civil sanction for enforcement. The offenses must be defined with appropriate definiteness. There must be ascertainable standards of guilt, but impossible standards of specificity are not required. Men of common intelligence cannot be required to guess at the meaning of the statute. The vagueness may be for uncertainty with respect to persons within the scope of the statute or in regard to applicable tests to ascertain guilt. The test is whether the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice. (United States v. Cardiff, 344 U.S. 174, 97 L.Ed. 200, 73 S.Ct. 189; Cramp v. Board of Public Inst. of Orange County, Fla., 386 U.S. 278, 7 L.Ed.2d 285, 292, 82 S.Ct. 275; Winters v. New York, 333 U.S. 507, 92 L.Ed. 840, 68 S.Ct. 665; Champlin Rfg. Co. v. Commission, 286 U.S. 210, 76 L.Ed. 1062, 52 S.Ct. 559, 86 A.L.R. 403.)”
Another principle discussed in State v. Gunzelman, 210 Kan. 481, is particularly applicable to our current analysis:
“A statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. (State v. Blaser, 138 Kan. 447, 26 P.2d 593; State v. Rogers, 142 Kan. 841, 52 P.2d 1185; State v. Carr, 151 Kan. 36, 98 P.2d 393.) In creating an offense which was not a crime at common law the legislature must make the statute sufficiently certain to show what was intended to be prohibited and punished, otherwise it will be void for uncertainty. But reasonable certainty is all that is required, and liberal effect is always to be given to the legislative intent in view of the evil to be corrected. (State v. Davidson, 152 Kan. 460, 105 P.2d 876; State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750.)” p. 484.
With the foregoing general principles in mind, we now turn to the question before the court. Are the provisions of K.S.A. 21-3405 so vague and indefinite that the statute is unconstitutional? We think not.
The predecessor to our present statute was the negligent homicide statute, K.S.A. 8-529, which read:
“Negligent homicide; penalties, (a) When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in negligent disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.
“(b) Any person convicted of negligent homicide shall be punished by imprisonment for not more than one year or by fine of not less than $100 nor more than $500, or by both such fine and imprisonment.
“(c) The commission shall revoke the operator’s or chauffeur’s license of any person convicted of negligent homicide.”
This statute was repealed in 1969 with the adoption of K.S.A. 21-3405. The 1969 statute was identical with today’s except the term “material deviation” in section (1) read “substantial deviation.” The word substantial was changed to material in 1972.
A conviction under the present statute requires a finding that the defendant was guilty of conduct “which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances. ”
In State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976), we considered the 1972 amendment while determining the degree of negligence necessary to convict under this statute.
“We think the Legislature meant something more than simple negligence when it defined the standard of conduct condemned under the vehicular homicide statute.
“The vehicular homicide statute (K.S.A. 21-3405) was enacted in 1969 with the wording ‘substantial deviation.’ Whether its drafters intended this wording to mean something more than simple negligence need not be decided, because legislative action in 1972 provides a clearer indication of legislative intent. In 1972, legislation was introduced which would have amended the statute by changing ‘creates an unreasonable risk of injury’ to ‘creates a risk of injury,’ and by changing a ‘substantial deviation’ to ‘a deviation.’ As enacted, the legislation made only one change in the statute; ‘substantial’ was changed to ‘material.’ (L. 1972, Ch. 113, § 1.)
“We view the change made to the statute in 1972 to be, in essence, no change at all. ‘Substantial’ and ‘material’ have been construed as synonymous terms. Lewandoski v. Firikel, 129 Conn. 526, 29 A.2d 762. The Legislature was presented with language that would have clearly indicated only simple negligence was intended. The Legislature chose not to adopt such language. We conclude that the degree of negligence contemplated by the Legislature in K.S.A. 21-3405 is something more than simple negligence.” p. 654.
In the case sub judice the trial court found that the words “material deviation” were so vague and indefinite that the statute was unconstitutional. While the statute in its present form no longer refers to negligence as the basis for the offense, the overwhelming majority of vehicular homicide statutes from other jurisdictions contain some express reference to “negligent conduct.” Some require only “simple” negligence while others require “criminal” and “gross” negligence. Annot., 20 A.L.R.3d 473. Cases under our old negligent homicide statute interpreted it to apply to ordinary negligence on the part of the driver of the vehicle which proximately resulted in the death of another. State v. Champ, 172 Kan. 737, 242 P.2d 1070 (1952); State v. Miles, 203 Kan. 707, 457 P.2d 166 (1969).
Even though “negligence” is not expressly mentioned in 21-3405, we have held that it is still the gravamen of the offense. State v. Choens, 224 Kan. 402, 580 P.2d 1298 (1978); State v. Makin, 223 Kan. 743, 576 P.2d 666 (1978). In Makin the defendant was convicted of voluntary manslaughter and appealed to this court asserting that the vehicular homicide statute, being a specific statute, superseded the general manslaughter statute. We held that it did except in cases of wanton conduct which was equated with gross negligence. This determination was amplified upon in Choens. It is now established that the “material deviation” required for a conviction under 21-3405 requires something more than ordinary or simple negligence yet something less than gross and wanton negligence. It was the necessity for this determination that the trial court found made the statute vague and indefinite and therefore unconstitutional.
It is true that no hard and fast rule can be stated that would set an obvious standard of conduct in every factual situation. No such standard is required. The fact that the prescribed standard of conduct in a criminal statute may be one of varying degree dependent upon the factual circumstances in each case does not make a criminal law unconstitutional. As Mr. Justice Holmes of the United States Supreme Court said in Nash v. United States, 229 U.S. 373, 57 L.Ed. 1232, 33 S.Ct. 780 (1913):
“[T]he law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. ‘An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it’ by common experience in the circumstances known to the actor. ‘The very meaning of the fiction of implied malice in such cases at common law was, that a man might have to answer with his life for consequences which he neither intended nor foresaw.’ Commonwealth v. Pierce, 138 Massachusetts, 165, 178. Commonwealth v. Chance, 174 Massachusetts, 245, 252. ‘The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.’ 1 East P.C. 262. If a man should kill another by driving an automobile furiously into a crowd he might be convicted of murder however little he expected the result. See Reg. v. Desmond, and other illustrations in Stephen, Dig. Crim. Law, art. 223, 1st ed., p. 146. If he did no more than drive negligently through a street he might get off with manslaughter or less. Reg. v. Swindall, 2 C. & K. 230; Rex v. Burton, 1 Strange, 481. And in the last case he might be held although he himself thought that he was acting as a prudent man should,” p. 377.
The Supreme Court has also noted that there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls. However, this is not sufficient reason to hold the language too ambiguous to define a criminal offense. Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304 (1957).
The terms “ordinary or simple negligence” and “gross and wanton negligence” have been ingrained in our law for years and are now generally accepted and understood by the legal profession and the judiciary. It is no longer argued that such terms are so vague and indefinite that juries and courts cannot apply them to particular circumstances or facts. See PIK Civ. 2d 3.01 — 3.04 (1978). There are many terms now accepted as establishing reasonably definite standards of proscribed criminal conduct which are not explicit and are not subject to specific definition applicable to all possible factual situations. In United States v. Henderson, 121 F.2d 75, 76-77 (D.C. Cir. 1941), a statute which prohibited “the operation of any vehicle at an immoderate rate of speed or in a careless, reckless, or negligent manner, but not willfully or wantonly” was attacked on constitutional grounds. The court said:
“The mere fact that the specified standard of liability may be one of varying degree does not make a criminal law unconstitutional. Many of the most familiar terms of the law are of this character. Practically all the common-law definitions of crime contain such words and phrases; as, for example, malice aforethought, deliberation and premeditation, consent, specific intent, breaking and entering, taking and carrying away, from the person or in the presence, and false testimony material to the issue.”
There is no limit to the terminology used in criminal cases which is not subject to specific definition which would apply to all facts and circumstances. A few that readily come to mind include: beyond a reasonable doubt; prudent man; greater weight of the evidence; clear and convincing evidence; a preponderance of the evidence; reasonable man; substantial rights; prejudicial error, etc. All such terms require the trier of the facts or the court on appeal to apply a general standard, not a specific one, to the circumstances in the particular case. In State v. Wojahn, 204 Ore. 84, 282 P.2d 675 (1955), the court in an extensive and compre hensive opinion reviewed the vehicular death statutes then in effect in many of the United States. Decisions are cited and quoted finding statutes constitutional which use such diverse and general terms as: “without due caution or circumspection”; “driving at a speed greater than is reasonable and proper”; “operation of a vehicle at an immoderate rate of speed”; “lack of due caution and circumspection”; “culpable negligence”; “driving in negligent disregard of the safety of others”; “exercising all reasonable care”; “reckless disregard”; and others.
In Makin, we recognized the difficulty in distinguishing “wanton conduct” (gross negligence) from “simple negligence”.
“In determining whether particular conduct is wanton, each case must stand on its own footing as applied to the facts involved (Hickert v. Wright, 182 Kan. 100, 319 P.2d 152). Precise statements of what constitutes wanton or gross negligence are impossible. If the absence of negligence is white and gross negligence is black, then innumerable shadings of grey lie between. Using this analogy the legislature obviously seeks to exclude the pale grey areas from criminal responsibility. The appellant asks us to hold that, by excluding the pale grey areas from criminal responsibility, the legislature has reduced the penalty for the conduct in the black area.
“The totality of the circumstances must be considered. Identical conduct under different circumstances may result in no criminal responsibility, vehicular homicide, or involuntary manslaughter. For example, let us assume that a person is operating his vehicle at 60 miles per hour on dry pavements on a sunny day with little traffic at 4:00 on a Tuesday afternoon and he strikes and kills a pedestrian crossing the road. This same set of facts could be (a) no responsibility if it occurred in a remote, sparsely populated area; (b) vehicular homicide if it occurred in a residential area; and (c) involuntary manslaughter in a posted school zone. Even within these classes additional facts would have to be supplied before a definitive statement could be made.” 223 Kan. at 746.
As we have indicated previously, a material deviation is such a departure from the ordinary standards of due care to amount to more than simple or ordinary negligence yet less than gross and wanton negligence. State v. Choens, 224 Kan. 402; State v. Makin, 223 Kan. 743. We have also held that material deviation is the same as substantial deviation. State v. Gordon, 219 Kan. 643. This court has found the qualifying term “substantial” to be reasonably definite as used in the phrase “real or substantial value.” State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 410 P.2d 308 (1966). The terms material and substantial have been considered in literally hundreds of appellate decisions involving innumerable factual circumstances and standards. See 26A Words and Phrases, pp. 209-294, and 40 Words and Phrases, pp. 757-853. Material is a relative term which must be gauged by all the circumstances surrounding the transaction or event to which it refers. It imports a considerable amount in opposition to that which is inconsequential or small. It is serious as opposed to trivial or minimal. It is extraordinary as opposed to ordinary. It is major as opposed to minor. In short, when applied to the statute in question it is more than the everyday minimal departures from the ordinary standard of care required by our vehicle and traffic statutes and ordinances yet something less than the reckless disregard and complete indifference and unconcern which are inherent in the more serious offenses involving gross or wanton conduct. A driver of a vehicle exceeding the speed limit by 5 miles per hour would be in violation of the statute or ordinance establishing the same but would not be considered to be materially deviating from the standard. On the other hand a violation of exceeding the limit by 30 miles per hour, under certain circumstances such as in a school zone, might be a material deviation. We recognize that the use of synonyms and antonyms to define or describe a term in a criminal statute does not result in that degree of specificity that would be ideal; however, when the terms of the statute and the words used to define them are words of general usage, commonly known and understood by the public, they are sufficient to meet constitutional muster.
Each case must be considered upon its own set of facts and circumstances and each judge or jury must determine whether the alleged conduct constitutes such a deviation from the norm as to fall within the proscribed conduct. It was this duty that the trial judge in the instant case did not feel he could meet although he had no difficulty in finding the defendant was guilty of ordinary negligence and had departed from the required minimum standards of care. Likewise, he had no difficulty in determining that the actions of the defendant did not constitute wanton or willful negligence. If the facts had warranted it, we believe the court could also have determined that the conduct fell between these two extremes so as to constitute a violation of the statute.
In State v. Ashton, 175 Kan. 164, 262 P.2d 123 (1953), the constitutionality of the negligent homicide statute, G.S. 1949, 8-529 was considered. This court said:
“It is clear the legislature did not attempt to specify in detail the innumerable and variable circumstances, conditions, acts and omissions from which death might result from vehicular traffic. It undertook to enact a statute sufficiently broad to encompass negligent acts and omissions of all kinds and character from which death ensued when committed in disregard of the safety of others. It is a police measure designed to protect the public from the constantly mounting death toll resulting from vehicular traffic. In order to prevent or decrease these direful results the law, of necessity, had to be broad and general in its reach.
“Manifestly, no legislature could accurately anticipate every possible circumstance or contingency which might arise and legislate specifically concerning it. That would be true concerning speed and all other factors which might become involved in highly dissimilar situations.
“Some offenses admit of much greater precision and definiteness than others and where possible statutes always should be framed with reasonable certainty. Reasonable and not mathematical certainty is what the law requires. It appears the instant statute is about as definite and certain as the subject matter, the evil sought to be remedied, permits. That is the real test. Under such circumstances a police measure enacted for the safety of the public will not be nullified on the ground of constitutional invalidity. (State v. Rogers, supra, [142 Kan. 841] p. 855, 857.)
“That traffic statutes based on general provisions prohibiting negligent, careless, reckless or willful and wanton conduct in disregard of the safety of others do not contravene the constitutional guarantee of due process or the tenth section of our bill of rights by reason of indefiniteness or uncertainty is established by the overwhelming weight of authority.” pp. 170-172. (Emphasis added.)
As reasonable certainty is all that is required, we hold that the words “material deviation” as used in K.S.A. 21-3405 are not unconstitutional as being vague and indefinite when the standard proscribed therein is measured against the parameters of ordinary negligence on the one hand and gross and wanton negligence on the other.
The appeal is sustained.
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The opinion of the court was delivered by
Herd, J.:
This is an action by William B. Addis and Frank Addis, a partnership, d/b/a Sunset Products to recover damages for losses sustained as a result of the use of products purchased from Bernardin, Inc. Bernardin, Inc. counterclaimed for money due on Sunset Products’ open account, upon which judgment was confessed. The case was tried to the court who found for the plaintiff, Sunset Products. Defendant Bernardin, Inc. appeals.
Appellee Sunset Products, a partnership managed by William Addis, of Wichita, Kansas, is engaged in the manufacture, bottling and sale of salad dressing to the wholesale market. The dressing is bottled in gallon plastic jars and capped with a threaded lid which is usually sealed with a small plastic liner, known in the trade as “plastisol.” Appellant Bernardin, Inc., an Indiana corporation, manufactures jar lids. Sunset Products purchased its jars from Addis Plastics and its lids from Dura Container, of Chicago, Illinois. From time to time prior to August 1974, sales representatives from Bernardin contacted Sunset Products about selling it jar lids, with no luck. Finally, in August, 1974, William Addis called Bernardin’s sales representative, Larry Hooper, in Dallas, Texas, concerning the purchase of jar lids from Bernardin, Inc. The two men met in Addis’ office in either August or September of 1974. Addis advised Hooper his company manufactured salad dressings which contained both vinegar and salt and any lids he purchased from Bernardin must be compatible with those contents. Addis also told Hooper he had been obtaining his jar lids from Dura Container and showed him an example saying he needed a similar product with a plastisol lining and a gold lacquer interior.
Addis called Hooper again in September 1974 to place the jar lid order. Addis requested white plastisol-lined lids with a gold lacquer interior. He believed the order of jar lids with a plastisol lining would be compatible with his product. Hooper advised Addis he would not recommend the jar lids for products containing vinegar and salt. Addis insisted he wanted lids exactly like those he had purchased from Dura. In spite of Bernardin’s recommendation, he ordered 350,000 lids for delivery in early 1975. Hooper did not explain that the plastisol lining was only the seal on the lid and the incompatible part of the lid was the gold lacquer interior. This fact was never explained to Addis until the lawsuit was almost over. The delivery date was changed several times and Sunset Products received its first shipment of Bernardin lids in May, 1975.
Sunset Products very quickly began to receive complaints from disgruntled customers complaining of spoiled salad dressing. The company immediately picked up the jars of salad dressing and paid for the spoilage, which amounted to $115,000.00, according to Addis. Addis notified Bernardin of the problem and returned the unused jar lids. Bernardin gave Sunset a credit memo for their cost, which amounted to $12,877.89. At the same time, the parties discussed future business and reached an agreement whereby Bernardin would furnish new lids compatible with Sunset’s products and give a discount against future purchases amounting to $7,500.00. Both Addis and Bernardin representatives referred to these future credits as damages. Addis claims this settlement represents payment for the defective jar lids and the existence of a new contract. Bernardin claims the agreement represents a complete settlement of all damages suffered by Sunset.
Bernardin began shipment of the new lids which were compatible with Sunset’s product. Sunset used them, but refused to pay its account because the promised discount did not immediately materialize. On appeal, Bernardin explained this was due to bookkeeping error.
Sunset Products brought suit against Bernardin for $750,000.00, which represented damages it had sustained as a result of the use of the incompatible lids. An examination of the pretrial order reveals plaintiff alleged Bernardin had been negligent in its dealings with Sunset Products and that Bernardin had breached an implied warranty of fitness. Bernardin answered, denying negligence and breach of any warranty and alleged accord and satisfaction as a defense to the claim. Bernardin also counterclaimed for $22,965.17, the amount due for the shipments of new lids. Sunset Products later stipulated this amount was due and owing. The case was tried to the court and, after numerous stops and starts, the trial court found for Sunset Products in the amount of $95,891.08. Bernardin appeals.
Appellant Bernardin alleges the trial court erred in not finding that the evidence established accord and satisfaction as a matter of law. Accord and satisfaction is an affirmative defense and must be proven by the preponderance of the evidence. 1 Am.Jur.2d, Accord and Satisfaction § 55, p. 353, states:
“When the defendant pleads an accord and satisfaction in defense to the action against him, the burden is upon him to prove that defense in accord with the general rule of evidence which places the burden of proving the affirmative of an issue upon the party alleging the facts constituting it and relying thereon, he has the burden of proving the elements constituting,an accord and satisfaction, which means that he must prove that the claim he alleged had been satisfied, was unliquidated or that there was some dispute as to such claim or the amount due, or if the claim was liquidated and undisputed, that the alleged accord was based upon a proper and sufficient consideration, a mutual agreement, or the meeting of the minds of the parties to the accord and satisfaction as to the amount to be paid or the property to be accepted, and that this was given and accepted in full settlement of the original claim or dispute.”
The evidence is highly disputed regarding the type of agreement the parties entered into. Appellant alleges Addis entered into two agreements: one to replace the original, incompatible lids, and a second to settle the entire matter for $7,500.00, to be paid as a discount on future lid orders. Appellant believes it is the second agreement for $7,500.00 that constitutes the accord and satisfaction. Appellee concedes the first agreement was to replace the used lids but contends the second agreement to credit future lid orders was only a discount arrangement to pay for those replaced lids received in the first agreement.
The record reveals undisputed evidence that Sunset Products originally purchased 350,000 lids at $58.86 per thousand thereby paying out $20,601.00 to Bernardin. After the loss occurred, Bernardin took the unused lids back, giving Sunset a credit memo for $12,877.98. Bernardin’s witnesses testified they also gave Sunset a $7,500.00 discount on future purchases. The credits add up to $20,377.98. Addis claims, with some credence, the amount he received represented a settlement for this original lid purchase and for nothing else. We believe the trial court was justified in finding no accord and satisfaction. The court believed there was no meeting of the minds between the two parties.
“It is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact and our only concern is with evidence which supports the trial court’s findings, and not with evidence which might have supported contrary findings.” Care Display, Inc. v. Didde-Glaser, Inc., 225 Kan. 232, Syl. ¶ 4, 589 P.2d 599 (1979).
Appellant urges this court to consider alleged admissions made by Addis in his testimony regarding the second agreement. Appellant relies upon Hiniger v. Judy, 194 Kan. 155, Syl. ¶ 2, 398 P.2d 305 (1965), which states:
“A verdict cannot be upset if there is any evidence in the record to support it, where such issue is clearly presented without complicating factors, but such rule yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross examination of the party.”
See also Simpson v. Davis, 219 Kan. 584, 549 P.2d 950 (1976); Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976).
Addis’ testimony reveals he had reached an agreement with Bernardin through its agents to keep him in business by amortizing a $7,500.00 loss on the lids he had used at $7.50 per thousand discount on lid purchases for the ensuing year. He further stated the agreement was for the purpose of settling the loss on the lids and did not include damages for his loss of business. We do not interpret his testimony as an admission. Addis did not intend to make a full settlement when he accepted replacement caps and credit on future cap purchases. Accordingly, we find appellant’s first issue without merit.
Appellant maintains the pleadings and evidence do not support a judgment based on a finding of a breach of warranty of merchantability, K.S.A. 84-2-314. An examination of the pretrial order reveals plaintiff contends defendant breached an “implied warranty of fitness.” The order does not indicate whether the contention refers to goods which are “fit for the ordinary purposes for which such goods are used” under implied warranty of merchantability, K.S.A. 84-2-314(c), or an implied warranty of fitness for a particular purpose, K.S.A. 84-2-315. The trial court’s findings of fact and conclusions of law state:
“It appears to the Court that generally there is an implied warranty in K.S.A. 84-2-314 that arises through a course of dealing and usage in this trade, and that is generally that defendant company and others similarly situated converse and work with, as a part of their procedures, a purchaser to make sure that a lid is compatible with the products that the lids would be used on, and they warrant their merchandise in that regard. That warrant was breached by the defendant company.”
The proof and findings are consistent with violations of K.S.A. 84-2-315, which provides:
“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”
rather than K.S.A. 84-2-314 which was referred to in the trial court’s findings. Appellant complains the pleadings and evidence do not support the trial court’s findings. Technically, that may be true, but we have stated:
“Where the record clearly discloses that all parties to an action have submitted their entire case for decision on all issues, they are held to have consented that the court decide such issues notwithstanding that an issue so decided may — in a strict technical sense — be deemed to be outside the literal scope of the pretrial order.” Thompson v. Aetna Life Ins. Co., 201 Kan. 296, Syl. f 1, 440 P.2d 548 (1968).
See K.S.A. 60-215(b); Fieser v. Stinnett, 212 Kan. 26, 509 P.2d 1156 (1973); Winsor v. Powell, 209 Kan. 292, 497 P.2d 292 (1972).
In addition, we find the trial court’s findings of fact and conclusions of law consistent with breach of the implied warranty of fitness for a particular purpose. The court’s citing of K.S.A. 84-2-314 instead of K.S.A. 84-2-315 was an inadvertent error. The conclusions of law are hereby construed, pursuant to K.S.A. 60-2105, to mean K.S.A. 84-2-315.
There is sufficient competent evidence to support the trial court’s finding of a breach of implied warranty of fitness for a particular purpose, K.S.A. 84-2-315. A buyer’s recovery under K.S.A. 84-2-315 necessitates a showing of reliance on the seller’s skill or judgment to select appropriate goods in conformity with the buyer’s intended use of the goods. Here, although Addis insisted upon ordering white plastisol-lined lids with gold interiors that looked like the lids he had ordered from Dura Container, he did not realize he was ordering lids that would be incompatible with his product. He wanted lids like those he had purchased from Dura Container. When Hooper visited his office, Addis showed him the Dura lid that he had previously used. Those lids had been successfully utilized with his product and he wished to duplicate his success with Bernardin’s lids. Hooper, on the other hand, knew the type of highly acidic product the lids would be used with and failed to explain the difference between the type of lid Addis ordered and the type he thought he was ordering. He allowed Addis to place an order for a lid that was not like the Dura lid and was not suitable for his product with only a recommendation against the order. It is clear the seller in this instance had superior knowledge and failed to properly caution the buyer. Addis relied on Hooper’s knowledge of his product and of the type of lid he wanted, believing he was ordering the type of lid the two had previously examined. We find this issue to be without merit.
Appellant’s other contentions are examined in light of our decision and are found to be without sufficient merit to warrant further discussion. The judgment of the trial court should be affirmed.
IT IS SO ORDERED.
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal filed by Charles E. Henderson, who was found guilty by a jury of murder in the second degree, K.S.A. 21-3402, and felony theft, K.S.A. 21-3701. He was sentenced to imprisonment for not less than five years nor more than life for the homicide and not less than one nor more than ten years for felony theft, the sentences to run concurrently. He contends that the State failed to prove the corpus delicti, and the evidence is insufficient to support the homicide conviction; that he was prejudiced by the State’s failure to prove the time of death as alleged in the bill of particulars; that the State committed prejudicial and reversible error in closing argument; that a mistrial should have been declared when an important witness was unable to appear in person, and the court erred in admitting the preliminary examination testimony of the witness; and that the court committed prejudicial error in failing to keep confidential the defendant’s ex parte request for funds with which to retain a pathologist to aid in the defense. Since the sufficiency of the evidence is challenged, we shall state the facts in some detail.
The events out of which this action arose occurred during late January and early February, 1978. The principal figures involved are Mary Edna Haslett, an 83-year-old who lived alone in Elk-hart, Kansas, and whose death occurred; Jim Hildreth, age 62, the State’s principal witness; and the defendant, Charles E. Henderson. Henderson arrived in Elkhart two or three days before Mrs. Haslett’s death. He stayed at Hildreth’s home. Both Hildreth and Henderson visited Mrs. Haslett’s home to drink liquor, watch TV, and socialize. During the day and early evening of January 31, 1978, the three persons were together at Mrs. Haslett’s home. Hildreth and Henderson took some whiskey with them, and Mrs. Haslett had a supply. They drank whiskey and watched televi sion. Sometime shortly after 8 o’clock p.m. the supply was exhausted. Mrs. Haslett drove to the liquor store, obtained another bottle of whiskey, and returned home. Henderson wanted Mrs. Haslett to take him to Sublette, but she refused to do so because of the weather. Shortly after Mrs. Haslett returned from the liquor store, Hildreth left her home, indicating that he was going to the home of a neighbor to retrieve a dog chain. Henderson and Mrs. Haslett were still in the house when Hildreth left. At approximately 9:30 o’clock that evening, officers were called to the Jim Dandy Grocery, about a block and a half from Mrs. Haslett’s house, in response to a complaint that Hildreth was causing a disturbance in the store. An officer picked up Hildreth and took him home. About two hours later, the police were called to Hildreth’s residence upon his complaint that his house had been broken into and his boots and dog stolen. The officers found nothing to indicate that there had been a break-in.
The next morning, on February 1, Hildreth went to the Jim Dandy Grocery Store where he purchased a bottle of after-shave lotion and drank it. He then telephoned Mrs. Haslett, and upon receiving no answer, asked the proprietor of the store to accompany him to Mrs. Haslett’s home. Upon entering the house, they discovered the body of Mrs. Haslett, sitting up in a rocking chair. There were no signs of violence. The police and coroner were summoned. One of the officers discovered footprints in the snow, leading away from the back of the house. The footprints had a peculiar asterisk mark in the heel; the footwear which matched the prints was not located. That same morning, a white pickup truck, which had been parked about two blocks from Mrs. Haslett’s house, was reported stolen.
The exact time that Henderson left Mrs. Haslett’s house is unknown. He was seen on the evening of January 31, when he purchased gasoline in Elkhart sometime between 8 and 9 o’clock. He was driving a white pickup truck. The missing truck was discovered the next morning, February 1, parked along highway 270 east of Hugoton. A CB radio, identified by serial number as having been in the white pickup truck, was sold by Henderson in Liberal, Kansas. Through force, Henderson obtained the use of a car at the Cimarron River bridge south of Ulysses. He was apprehended several days later while driving that car north of Ulysses in Kearny County.
The autopsy revealed that Mrs. Haslett died from asphyxia. The State’s theory is that the asphyxia was caused by suffocation resulting from defendant’s holding a pillow over her face. Search of Mrs. Haslett’s home revealed a pillow underneath some neatly piled clothing on the bed. The pillow had a small bloodstain on it, and an area having saliva marks. Three physicians testified during the trial. The first was Mrs. Haslett’s personal physician, Dr. Donidor Perido. He attended medical school in the Phillipines, then came to the United States. He testified that he practiced pathology at the United Hospital in Newark, New Jersey, where he spent one and one-half years, and performed approximately 100 to 150 autopsies. Following that he took a four-year surgical residency, where he was primarily in intensive care, taking care of heart patients; he then came to Kansas. He had been Mrs. Haslett’s physician for two or three years prior to her death. She had been in the hospital three times for wrist fractures, and once for a fracture of the elbow. He had run several electrocardiograms; one run on December 9, 1976, indicated that she had previously had a heart attack. He expressed the opinion that Mrs. Haslett did not die of a heart attack; he based this on the electrocardiograms previously taken, his knowledge and examination of her, and the fact that when he examined her on the day she was found, he observed discolorations or mottling from the neck up. He expressed the opinion that if death had been caused by heart failure or acute myocardial infarction, there would have been a generalized mottling and dusty discoloration of the entire body.
The primary medical witness for the State was Dr. Hugh Halsey Boyle, a pathologist from Wichita, Kansas, who was called in by the district coroner to perform an autopsy. Dr. Boyle observed a very deep and dark dusky discoloration of the skin from the collarbone to the top of her scalp. He observed “three areas of bruising or scraping of the skin, quite superficial, over the area of the chin and below the lip and up to about the point of the chin on the right side a little bit more than the mid line similar scraping on this side of her nose, the right side and over the outer half of her eyebrow and there was a small, very tiny laceration with some blood on it at the very outside of her right eyebrow.” Dr. Boyle expressed the opinion that there was no way that these injuries could have occurred naturally; the abrasions suggested to him that something like a fabric had scraped her face under some pressure. He found no evidence of skin, flesh or blood under her fingernails, and he found no bruises of the linings of her gums or the inside of her cheeks. He examined the inside of the nostrils and found no fibers. He found no bruises or other evidence indicating strangulation. Dr. Boyle expressed the opinion that Mrs. Haslett “died of asphyxiation most probably caused by suffocation.” He based that opinion upon the presence of the cyanotic state of the skin of her neck and scalp, the presence of fluid accumulation within the air spaces of the lungs, the presence of small pinpoint hemorrhages or bleeding points on the surface of both lungs, the presence of congestion or marked pooling of blood within the brain, the lining of the brain, and the absence of virtually any other disease process in her heart or other organs which would cause or contribute in any way to her sudden death. He was unable to fix the time of death. Dr. Boyle acknowledged that stoppage of the heart would cause asphyxiation; but from examination of the heart, he found rio evidence of previous or current injury to the heart muscle that would interfere with the heart’s function and no blockage of the arteries. He found no accumulation of fluids in the chest spaces, which he would anticipate finding if she had congestive heart failure.
Defendant’s expert was Dr. William G. Eckert, board certified by the American Board of Pathology in Anatomic Pathology, Clinical Pathology and Forensic Pathology. Dr. Eckert is a respected authority in the field. His testimony was based upon Dr. Boyle’s autopsy report, the examination of Mrs. Haslett’s medical and hospital records, a review of the literature regarding asphyxial deaths, and the circumstantial evidence surrounding the death. He stated that death by suffocation of an adult is very uncommon, and that if suffocation had occurred, one would expect injury on both sides of the face, injury from the teeth inside the mouth, and circumstantial evidence of a struggle. Dr. Eckert expressed the opinion that the findings of Dr. Boyle were consistent with either a heart attack or with suffocation; that death was caused by asphyxiation; but that the cause of the asphyxiation could have been either heart attack or suffocation. He stated that the absence of changes in the heart or in the heart vessels, the coronary arteries, is not necessarily indicative of death by causes other than heart failure, as death may be due to a problem o£ the electrical conduction of the heart. He expressed the opinion that both the discoloration of the skin in the area of the head and neck, and the findings as to fluid or absence of fluid in various portions of the body, were consistent with heart failure as well as with suffocation. In his opinion, both suffocation by another person’s acts or heart failure are medical possibilities.
We turn first to the defendant’s claim that the evidence was insufficient to support the second-degree murder conviction. The State’s evidence in this case is entirely circumstantial. It is a well established rule in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Steward, 219 Kan. 256, Syl. ¶ 13, 547 P.2d 773 (1976); State v. Sparks, 217 Kan. 204, 535 P.2d 901 (1975); State v. Ritson, 215 Kan. 742, 529 P.2d 90 (1974).
When a sufficiency of the evidence is challenged, then upon appellate review the issue before us is whether, upon the record evidence adduced at the trial, a rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 326, 61 L.Ed.2d 560, 578, 99 S.Ct. 2781 (1979). The appellate court must not weigh the evidence; if the essential elements of the charge are sustained by any competent evidence, the conviction stands. State v. Racey, 225 Kan. 404, 590 P.2d 1064 (1979).
The defendant challenges the sufficiency of the circumstantial evidence in two aspects: he contends that the State failed to prove the corpus delicti, and, assuming that a criminal death occurred, that the State failed to prove the defendant’s guilt.
In homicide cases the corpus delicti is established by the proof of two facts: that one person was killed, and that another person killed him. State v. Pyle, 216 Kan. 423, 432, 532 P.2d 1309 (1975); State v. Phippen, 207 Kan. 224, 229, 485 P.2d 336 (1971); State v. Doyle, 201 Kan. 469, 477, 441 P.2d 846 (1968). The corpus delicti may be proved by direct testimony, by indirect or circumstantial evidence, or by a combination of both. State v. Pyle, 216 Kan. at 432.
The present case presents no problem of proof regarding the occurrence of human death, nor does the defendant challenge that portion of the corpus delicti. He does, however, contend that the testimony of the two physicians called by the State, Dr. Per ido and Dr. Boyle, was insufficient to prove that the death resulted from a criminal act.
In Doyle, we said:
“Where the circumstances are as consistent with the absence as well as the presence of crime, the corpus delicti has not been proved since the evidence is susceptible to a construction which will prove innocence as well as guilt.” State v. Doyle, 201 Kan. at 479.
In Doyle, we also said that circumstantial evidence is sufficient, if it is the best evidence available, quoting from 3 Warren on Homicide, p. 115:
“The evidence should be acted upon with great caution, and weighed with scrupulous circumspection, especially where a public desire to detect a crime creates a tendency to exaggerate. The facts must be not only consistent with the guilt of the defendant, but must be inconsistent with the hypothesis of innocence.” Doyle, 201 Kan. at 478.
This suggestion, that the possibility of death by suicide or natural causes must be excluded, has not been followed in our later cases. In State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977), which affirmed a first-degree murder conviction, the requirement of examining the evidence so as to require incompatibility with “any reasonable hypothesis except guilt” is explicitly rejected. We note that the theory that the prosecution is under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt has been rejected by the United States Supreme Court. Jackson v. Virginia, 61 L.Ed.2d at 578; Holland v. United States, 348 U.S. 121, 140, 99 L.Ed. 150, 75 S.Ct. 127 (1954).
The Doyle rule, that proof must exclude death by accident or suicide beyond a reasonable doubt, was distinguished in State v. Sagebiel, 206 Kan. 482, 480 P.2d 44 (1971). There, Doyle was held readily distinguishable under the facts of that case because of eyewitness testimony of an altercation between Sagebiel and the deceased. Eyewitnesses were present when Sagebiel approached the deceased with a gun in hand and an altercation took place during which Sagebiel fired the weapon at the deceased at close range. Death occurred within one hour. In Doyle, the dead man was found seated behind the steering wheel of his car, a single bullet wound in his right temple, and a pistol lying beside his right hand on the front seat of the car. There was no evidence in Doyle to place the defendant at the scene of the alleged crime. The circumstantial evidence surrounding the death thus pointed no more strongly to criminal homicide than to death by accident or suicide. Similarly, Doyle was distinguished on the basis of the facts in State v. Sparks, 217 Kan. 204. In Sparks, there was direct evidence placing the defendant in physical contact with the deceased, a two-year-old girl, who had suffered massive brain damage from repeated blows to the head. The injuries obviously did not result from self-inflicted blows, accident, or attempted suicide.
In the present case, it is apparent that death could have been caused by heart failure; however, the State produced the testimony of two qualified experts, Dr. Perido and Dr. Boyle, both of whom testified that in their professional opinion death did not result from a heart attack or natural causes. Dr. Boyle found injuries to the face which indicated that fabric, a mat or a pillow, had been pushed along the surface. It was his professional opinion that death was caused by asphyxiation “most probably caused by suffocation.” Dr. Boyle examined the deceased’s heart and major blood vessels during the course of the autopsy; Dr. Perido was familiar with the decedent’s medical history, and with electrocardiograms taken over a period of several years immediately prior to her death. The weight of the testimony of these experts was, of course, for the jury; but we cannot say that this testimony was insufficient to establish the corpus delicti. The testimony of the defendant’s expert, Dr. Eckert, is contrary to that of the State’s experts; but however imposing Dr. Eckert’s qualifications may be, however compelling his testimony, this court cannot weigh it on appeal, but must consider only the evidence supportive of the trial court’s finding and the verdict. We conclude that the corpus delicti was adequately established.
Turning to proof of guilt of the defendant, the evidence shows that he was at the decedent’s home shortly preceding her death; that he was alone with the decedent; and that he took his belongings from Hildreth’s home, stole a pickup truck, and fled from the scene. He continued his flight until he was apprehended several days later. Under the circumstances, we hold that the evidence presented at trial was sufficient under the test of Jackson v. Virginia, noted above.
The defendant requested a bill of particulars pursuant to K.S.A. 22-3218(3), and in response thereto the State alleged that the defendant killed Mrs. Haslett between 8:00 and 9:40 o’clock p.m. on January 31, 1978. At trial the State did not present evidence as to the exact time of death. Defendant claims that this failure frustrated two of his defenses, alibi and criminal liability of Hildreth, in that absent a specific time of death, defendant had to establish an alibi for the entire period from early evening on the thirty-first until discovery of the body at eight o’clock the next morning.
A bill of particulars serves the dual purpose of informing the defendant of the nature of the charge and the evidence against him to enable him to prepare his defense, and of enabling the defendant to avoid further prosecution for the same offense. The State is restricted in its proof to the items specified in the bill of particulars. The purpose of this restriction is to prevent the State from charging the defendant with one crime and convicting him of something else. State v. Frames, 213 Kan. 113, 116, 117, 515 P.2d 751 (1973). We also said:
“It is not necessary for the prosecution to prove each and every factual statement contained in the bill of particulars. So long as the state proves all of the necessary elements of the particular crime charged, then the evidence is sufficient to convict regardless of whether every statement in the bill of particulars is proved.” (p. 117.)
The burden is on the State to prove each element of the crime. If the defendant was misled by the time in the bill of particulars, he presents upon appeal no specific ways in which he was prejudiced. The conviction does not rest upon evidence indicating a time of the crime outside the period alleged in the bill of particulars. Defendant failed to provide an effective alibi even for the period stated. Although his burden of alibi was theoretically increased by the State’s failure to prove the exact time of the crime alleged, the added theoretical burden did not prejudice the defendant and was not material to his conviction. The alibi witness testified that the defendant, driving the white pickup, purchased gas; the witness first said that the purchase was as early as eight o’clock, and later stated the time as nine o’clock. We fail to see how the defendant has been prejudiced in his defense, or in his attempt to shift the responsibility to Hildreth, who was in Elkhart during the entire period of time.
We turn next to the defendant’s contention that the prosecutor committed prejudicial error in his closing argument (1) by calling the jury’s attention to the defendant’s failure to testify; (2) by telling the jury that if they convicted the defendant, the convic tion could be reversed on appeal, but if they acquitted him, that judgment would stand; and (3) by stating his personal opinion as to the defendant’s guilt.
Early in the closing argument, the special prosecutor discussed the historical background of the first ten amendments, saying in part:
“[0]ne of their methods of trial [in medieval courts of inquisition] was trial by ordeal. And that consisted of taking the defendant and tying him in a chair of some kind and submerging him in water and pulling him up and asking him if he wanted to tell the truth. If he didn’t say what he was supposed to say, down he went again. If he didn’t drown he was considered innocent. And there were other ordeals such as the breaking of joints. Now if the defendant didn’t confess and he didn’t die, he was considered innocent.
“[W]hen our forefathers got together to adopt our constitution and later the first Ten Commandments which were the bill of rights, they were meticulously careful to see that innocent people would not be convicted. They set up all kind of safe guards. No arrest without warrant. Trial open to the public, before a jury of their own peers, which means their neighbors, which we have here. No search without a warrant, no trial by ordeal. In other words, the defendant is not forced to testify against himself. Proof beyond a reasonable doubt. Can’t try the defendant twice for the same offense. In other words, in this trial when you get through if you return a verdict of not guilty, it makes the defendant even more innocent and perfect than any of you members of the jury because you are in effect giving him a certificate of innocence that will stand for all time and there is no way to reverse it. Now, if you convict him, it is possible that it will be reversed by another court, but if you find this defendant innocent that stands for all times. That is a certificate of his innocence.”
In his final closing argument, the special prosecutor said:
“As far as I am concerned, I have got better things to do than to try to prosecute or send somebody to the pen that I don’t think is guilty. I am sure some of you think I would do it; for your benefit and just for the record, I wouldn’t dream of doing that. Maybe I would have to prosecute one that I didn’t have my heart in if I had the office [of county attorney] but when I am a Special Prosecutor, I can assure you that there is no doubt in my mind, reasonable or doubt in my mind about reasonable doubt of this man.”
Defense counsel objected promptly to the argument calling attention to the defendant’s failure to testify, and to the statement of the special prosecutor’s personal belief in the guilt of the accused. These were summarily overruled. No specific objection was made to that portion of the argument telling the jury that a conviction could be reversed, but an acquittal could not.
Comment by the prosecutor upon defendant’s failure to testify violates the defendant’s constitutional right against self-incrim ination. Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229 (1965); State v. Reeves, 224 Kan. 90, 93, 577 P.2d 1175 (1978). Kansas has codified the Griffin rule in K.S.A. 60-439, which prohibits comment by counsel and the court upon a defendant’s privileged failure to testify. Comment is not, however, a per se violation requiring reversal. Only error failing to meet the federal standard of harmless error, defined as proof beyond a reasonable doubt that the error did not contribute to the verdict, requires reversal. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967); State v. Reeves, 224 Kan. at 93.
We noted, in the Reeves opinion, that the right to complain of prosecutorial mention of a defendant’s failure to testify is generally precluded when the error is invited or provoked by the defendant or his counsel. Such is not the case here; the argument was not invited.
We must, in determining whether the comment was harmless, take into consideration the nature and extent of the comment, in comparison with the strength of the evidence of the defendant’s guilt. See Annot., Failure to Testify - Comment On, 24 A.L.R.3d 1093, 1109; State v. Rhodes, 110 Ariz. 237, 517 P.2d 507 (1973); People v. Garrison, 252 Cal. App. 2d 511, 60 Cal. Rptr. 596 (1967).
The Tenth Circuit finds that error exists where “the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). In such a case it finds reversible error despite failure to make a contemporaneous objection. Doty v. United States, 416 F.2d 887 (10th Cir. 1968).
When we apply these standards to the case at hand, we cannot find the error nonprejudicial. Although the comments were not explicit with respect to this defendant and were couched in the language of historical analysis, they are not harmless when compared with the totally circumstantial evidence presented against the accused. The State’s evidence of guilt was not overwhelming, to say the least. The jury could naturally and necessarily take the statements as comment on the failure of the accused to testify. The error was not harmless beyond a reasonable doubt.
The special prosecutor’s comment that if the jury erred by convicting, that error could be corrected on appeal, but an error in acquitting could not be corrected, is an argument which diverts the jury from its duty to decide the case, and as such it is improper. Cases from fourteen states where prejudice was found are discussed in Annot., Argument - Jury’s Mistake Correctible, 3 A.L.R.3d 1448; and see ABA Standards, The Prosecution Function § 5.8 (d) (Approved Draft, 1971). Since no contemporaneous objection was made to this argument, we consider it insofar as the cumulative effect of improper argument is concerned.
Finally, in this connection, we consider the prosecutor’s statement of his personal belief of the defendant’s guilt. In State v. McClain, 216 Kan. 602, 533 P.2d 1277 (1975), we cited with approval ABA Standards, The Prosecution Function § 5.8(b) (Approved Draft, 1971), which classifies such argument as unprofessional. The argument is also violative of our Rule No. 225, the Code of Professional Responsibility, DR 7-106 (C) (4), which provides that “In appearing in his professional capacity before a tribunal, a lawyer shall not . . . assert his personal opinion ... as to the guilt or innocence of an accused . . . .” 224 Kan. cv-cvi.
In McClain, we said that arguments stating the personal belief of the prosecutor in the accused’s guilt “may be considered and adjudicated in terms of the prejudicial effect thereof, rather than in terms merely of professional propriety . . . .” 216 Kan. at 608.
There was no contemporaneous objection in McClain, and the comment was mild, amounting “to no more than comment on the inherent improbability of the testimony given by appellant . . . .” We found no prejudice. Likewise, in State v. Smith & Miller, 224 Kan. 662, 585 P.2d 1006 (1978), cert. denied 441 U.S. 964 (1979), where the evidence of guilt was strong, and where the trial judge, after objection, struck the improper comment and admonished the jury to disregard it, we found no reversible error.
Counsel for the State suggest that the argument was provoked and invited by defense counsel in closing argument. The statement of belief in guilt, however, went substantially beyond the argument provoked. Response could well have been limited to the prosecutorial function without the infusion of personal opinion as to the guilt of the accused.
When we consider the entire picture, including the unambiguous opinion of guilt expressed, the standing of counsel in the community where trial was held, the overruling of defense counsel’s prompt objection, and the minimal strength of the State’s evidence of guilt, we conclude that the argument was prejudicial.
We conclude that the defendant suffered substantial prejudice because of the improper argument of the prosecutor in the three areas mentioned - comment on the accused’s failure to testify, argument that error in conviction could be cured on appeal, and statement of personal belief in defendant’s guilt — and that because of these errors, a new trial must be granted.
We turn next to the claim that when a witness could not appear, the trial court should have declared a mistrial; and that the court erred in admitting the preliminary hearing transcript of the witness’s testimony into evidence. The witness was one who sold gasoline to the defendant; in substance, he testified at the preliminary hearings that the purchase was between 8 and 9 o’clock p.m. Defendant hoped the witness would designate an earlier hour when he testified at trial.
The witness attended trial on the first day, but was not called. He became suddenly ill, was hospitalized, and was unable to attend during the rest of the trial. He had been called by the State, and had been fully cross-examined by defense counsel at the preliminary hearing. The trial court denied the defense motion for a mistrial, and permitted the State to introduce the transcript of the witness’s testimony.
We have discussed the use, under similar circumstances, of preliminary hearing transcripts in many cases. See State v. Steward, 219 Kan. 256, 264, 547 P.2d 773 (1976), and cases therein cited; also see K.S.A. 60-460(c). In State v. Alderdice, 221 Kan. 684, 561 P.2d 845 (1977), we said:
“The transcript of the preliminary hearing testimony of a witness may be received in evidence when, by the exercise of reasonable diligence, the witness cannot be produced at trial. The right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirements.” Syl. ¶ 1.
We find no error in the trial court’s refusal to declare a mistrial, and in receiving the preliminary hearing transcript into evidence, under the circumstances of this case.
Lastly, defendant complains because though the trial court entertained an ex parte defense motion and authorized the employment of a pathologist at public expense, as an expert witness for the defense, the trial judge refused to keep that authorization confidential. Defendant makes no showing of prejudice. The State had already endorsed the names of its experts, Dr. Perido and Dr. Boyle, on the original complaint and on the information; the State secured no additional experts to counter the testimony of defendant’s expert. The case relied upon by defendant, Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970), is not persuasive. There the court held an adversary, not an ex parte hearing. Prejudice was obvious. Here the defendant was not required to disclose the reasons for his request or to disclose defense strategy. We find no prejudicial error.
For the reasons stated above, the judgment is reversed and the case is remanded with directions to grant a new trial.
Fromme, J., not participating.
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by Wesley Medical Center and St. Joseph Medical Center, Inc. from a judgment of the Sedgwick County District Court affirming the decision of the Secretary of Human Resources assessing the appellants’ 1975 unemployment contribution rates at 3.6% of wages paid.
The facts are not in dispute. Both plaintiff-appellants are hospitals located in Wichita, Kansas, and are non-profit organizations described in section 501(a) of the U.S. Internal Revenue Code, 1954, and as such are exempt from income taxes.
The plaintiffs became liable for taxes under Kansas Employment Security Law, K.S.A. 44-701 et seq., January 1, 1972, as non-profit hospitals under K.S.A. 44-703(h)(10) (L. 1971, ch. 180). Both plaintiffs elected to become contributing employers (K.S.A. 44-710[e]). For 1972, Wesley’s rate was 1.26%, St. Joseph’s was 1.68%; for 1973, rates for both were 2.22%; and for 1974, both were 1.7%. Those rates were for ineligible employers and were figured on industry wide experience.
By January 1,1975, the plaintiffs had sufficient experience to be classified under K.S.A. 44-710(a) and 44-710(c) in accordance with their actual employment experience and the payment of unemployment benefits was charged against their reserve. They were now “eligible” employers under the act.
The Division of Employment of Kansas computed and assessed appellants’ unemployment contribution rate to be 3.6% for the calendar year 1975. Notices were mailed and each plaintiff filed a request for review pursuant to K.S.A. 44-710b(o). The cases were consolidated on review.
The administrative hearing was held on April 1, 1975. On July 18, 1977, the Secretary of Human Resources rendered his decision affirming the Division of Employment’s computation of plaintiff’s contribution rate to be 3.6%. He found that the adjusted rates for 1975 were prepared according to the statute, that the Division of Employment had followed generally accepted accounting and statistical procedures and that the rates had not been assessed discriminatorily. Both hospitals appeal from that decision.
Three of appellants’ issues of error are constitutional attacks on the Kansas Employment Security Act. We have previously held a statute is presumed to be constitutional and all doubts must be resolved in favor of its validity. Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975); Rogers v. Shanahan, 221 Kan. 221, 565 P.2d 1384 (1976); 16 Am. Jur. 2d, Constitutional Law § 175, pp. 399-401. We feel constrained to abide by the presumption.
In the first issue of error, appellants claim their contribution to the Unemployment Security Fund so far exceeds the benefits they have received it constitutes a confiscation of their property without due process of law contrary to the United States and Kansas Constitutions. The applicable constitutional provision is the Fourteenth Amendment to the U.S. Constitution, which states at §1:
“[N]or shall any State deprive any person of life, liberty or property, without due process of law . . .
See also Kansas Const. Bill of Rights, § 18.
Due process had its origins in the Magna Charta and was written into the U.S. Constitution in the Fifth Amendment and imposed on the states in the Fourteenth Amendment in 1868. The Fifth Amendment is a limitation upon the powers of Congress while the Fourteenth Amendment is a limitation upon the powers of the states. We are concerned with the Fourteenth Amendment in this discussion. It encompasses both procedural and substantive due process but appellants have raised no questions about the procedural aspects of the Kansas Employment Security Act, K.S.A. 44-701 et seq. Therefore, we will confine this opinion to substantive due process.
It is said the due process clause has as its purpose insuring the fair and orderly administration of the laws. But it is incapable of precise definition because its meaning in each case depends upon the relation of the law authorizing it to the fundamental law limiting the power of the legislature. 16 Am. Jur. 2d, Constitutional Law § 545, p. 936.
In spite of the court’s refusal to provide a precise definition of due process, we can examine a case by case interpretation of its meaning. In Ross v. Moffitt, 417 U.S. 600, 41 L.Ed.2d 341, 94 S.Ct. 2437 (1974), the court explained:
“ ‘Due process’ emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated.” p. 609.
In Kinsella v. Singleton, 361 U.S. 234, 4 L.Ed.2d 268, 80 S.Ct. 297 (1960), the court said due process pertains to the denial of fundamental fairness, shocking to the universal sense of justice and deals neither with power nor with jurisdiction but with their exercise.
The court declined to disturb assessments of taxation unless they clearly transgress reasonable limits, Great Northern Ry. v. Weeks, 297 U.S. 135, 80 L.Ed. 532, 56 S.Ct. 426 (1936), and stated there must be something in legal effect which is the equivalent of intentional or fraudulent purpose nullifying the principles which safeguard the citizen’s rights and property for a law to be violative of the due process clause.
The U.S. Supreme Court further amplified its interpretation of due process in Richardson v. Belcher, 404 U.S. 78, 84, 30 L.Ed.2d 231, 92 S.Ct. 254 (1971), saying if the goals sought by legislation were legitimate and the classification adopted was rationally related to achieving the goals, it didn’t violate the due process clause.
This court then spoke to the issue in Brown v. Wichita State University, 219 Kan. 2, Syl. ¶ 7, 547 P.2d 1015 (1976) stating:
“In order for constitutional due process to be violated, the legislation before the court must bear no reasonable relation to a permissive legislative objective.”
We have stated that the essence of due process is protection from arbitrary government, Baker v. List and Clark Construction Co., 222 Kan. 127, 563 P.2d 431 (1977), and that if a statute is necessary for the effectuation of a legitimate and substantial state interest, and not applied in an arbitrary or capricious manner, it would not violate the due process clause. Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263 (1975).
Let us test appellants’ argument on the foregoing rules. The specific facts relied upon by appellants to support their allegation of a violation of the due process clause are: Wesley Medical Center paid unemployment contributions of $1,489,850.00 in 1975 and $30,531.00 in benefits were charged to its account. St. Joseph Medical Center, Inc. contributed $246,680.00 with only $3,139.00 benefits charged to its account, during the same period. They contend the discrepancy between cost and benefits prove the Employment Security Act is unconstitutional.
We do not agree. We think it is clear the relationship of taxes paid to the benefits received is not a per se violation of the due process clauses of the constitutions. Such discrepancies are unconstitutional only if there is no rational relationship between the tax and a legitimate and substantial state interest or goal, or if the statute is applied in an arbitrary or capricious manner.
The State’s goals of the Employment Security Act are specifically set forth in K.S.A. 44-702, which states:
“[T]he public policy of this state is declared to be as follows: Economic insecurity, due to unemployment, is a serious menace to health, morals, and welfare of the people of this state. . . . The achievement of social security requires protection against this greatest hazard to our economic life. . . . The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed.”
We find there is a rational relationship between K.S.A. 1975 Supp. 44-710a, the taxing section of the act, and the State interest and goal as stated in K.S.A. 44-702. Appellants have contributed much more to the fund than their former employees have received back in compensation but a taxing system cannot be judged on a cost/benefit ratio. There are many benefits an employer receives which are not disclosed on such an evaluation. For instance, under the Employment Security Act an employer accumulates a reserve fund which ultimately permits him to obtain a 0% tax rate if he experiences a favorable employment record. In fact, Wesley has had such a favorable record its rate has improved from 3.6% in 1975 to 1.0% in 1977. A contributing employer receives the benefit of having its tax rate determined by its experience factor. Bill George Chrysler-Plymouth, Inc. v. Carlton, 216 Kan. 365, 532 P.2d 1351 (1975).
In Bagley & Huntsberger; Inc. v. Dept. of L. & I., 34 Pa. Commw. Ct. 488, 491-492, 383 A.2d 1299 (1978), the employer presented a similar argument and the court, approving language from Labe’s Men’s Shop v. Young, 35 D. & C. 2d 135, 141-42, 82 Dauphin 383, 388-89 (1964), responded:
. . The Unemployment Compensation Law may aptly be termed a statute having two somewhat related but nevertheless distinct and separate purposes. The one purpose is that of creating a fund out of which compensation benefits may be paid to persons who are unemployed through no fault of their own. To accomplish this purpose the act imposes contributions upon all employers, as defined in said act, which contributions are paid into the fund created for the payment of compensation benefits to eligible persons.
“The other purpose or objective of this act is to afford to certain persons unemployment compensation benefits, and the provisions thereof establishing eligibility, amount and duration of such benefits accomplish this purpose. . . .
“The quid pro quo relationship of employer Contributions to eligibility for compensation benefits which this ‘injustice’ suggests simply does not exist within the intent and purposes of the law . . . .”
Similar statutes to the Kansas law have been held constitutional as a valid exercise of the police power with its paramount objective that of relieving the distress of unemployment. 76 Am. Jur. 2d, Unemployment Compensation § 14, p. 889.
Finally, in this regard it has been shown that all contributing employers receive the benefit from their contributions of helping prevent unemployment and “to lighten its burden.” It was well stated by Mr. Justice Stone in Carmichael v. Southern Coal Co., 301 U.S. 495, 521-522, 81 L.Ed. 1245, 57 S.Ct. 868 (1937):
“[T]hose who pay the tax may not have contributed to the unemployment and may not be benefited by the expenditure. . . . Nothing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied.”
Appellants also argue the legislation was applied in an arbitrary and capricious manner in violation of the due process clause. Does the discrepancy between cost and benefit establish such a violation? We think not. There is no evidence in the record to show the Department of Human Resources failed to use each step provided in the statute for determining rate. The trial court found as a matter of fact the rate was computed pursuant to the law and was not unreasonable, arbitrary or capricious.
In addition, it shouldn’t be overlooked that each of the appellants had the privilege under K.S.A. 1975 Supp. 44-710(e) of becoming reimbursing employers and thereby avoid the employment tax by becoming a self insurer. Theoretically, under such an arrangement the cost and benefits balance. Such an employer pays its own unemployment benefits directly to its unemployed personnel. St. Joseph elected to exercise that option but now wants to be reinstated as an eligible contributing employer with its reserve fund restored. Wesley refused to elect to become a reimbursing employer.
We find appellants, by their actions, clearly show they do not consider the Unemployment Compensation Tax arbitrary, capricious or unreasonable. Neither do we. Appellants’ first issue of error is without merit.
Appellants’ second contention is the “array method” for determining unemployment tax rates pursuant to K.S.A. 1975 Supp. 44-710a is an unlawful delegation of legislative authority to an administrative agency in violation of the separation of powers doctrine of the Constitution. This issue requires a close examination of the Constitution and the case law interpreting it.
Article 2, § 1 of the Kansas Constitution provides: “The legislative power of this state shall be vested in a house of represent atives and senate.” This court then made a detailed statement about the separation of powers in Coleman v. Newby, 7 Kan. *82, *86, *89 (1871), where it stated:
“The delegated power of the government is divided into three great branches, — the legislative, the judicial, and the executive, — and these three branches include all the delegated power of the government. What is not delegated remains with the people. Section 20, Bill of Rights. The legislative power is delegated to the legislature, (section 1, art. 2, Const.;) the judicial power to the judiciary, (section 1, art. 3, Const.;) and the executive power to the executive officers of the government, (sections 1, 3, art. 1, Const.). Under this grant of power it seems to be well settled that it is the peculiar province of the legislature to make the laws, of the judiciary to construe and expound them, and of the executive to execute and enforce them. [Citations omitted.] The great weight of authority seems to be that these three great powers or branches of power of government— the legislative, the judicial, and the executive — are distinct and separate from each other; [Citation omitted.] that they include all the delegated power of the state; (section 20, Bill of Rights;) and that each is delegated to its appropriate department, and can be exercised by no other department. [Citation omitted.] . . . “. . . When the people said, in the language of the constitution, (section 1, art. 2,) that ‘the legislative power of the state shall be vested in a house of representatives and senate,’ they meant all the legislative power. . . . These three powers having once been delegated by the people of the state to their respective departments, cannot again be delegated, but each must be exercised by the department to which it properly belongs. [Citations omitted.]
“While the legislature possesses all the legislative power of the state, and while it is true that they cannot delegate any portion of that power to any other body, tribunal, or person, yet it is generally found impracticable for them to exercise this power in detail. They may do so if they choose, or they may enact general provisions, and leave those who are to act under these general provisions to use their discretion in filling up the details.”
The matter of delegation of legislative authority was masterfully interpreted by Mr. Justice Burch in State, ex rel. v. Hines, 163 Kan. 300, 308, 182 P.2d 865 (1947). The court said:
“[P]erhaps the act can be considered as valid insofar as the delegation of power is concerned, provided standards are fixed therein upon which a fact-finding administrative board is empowered to take action. But standards there must be, Mr. Justice Cardozo stated in his dissenting opinion in Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L.Ed. 446, T concede that to uphold the delegation there is need to discover in the terms of the act a standard reasonably clear whereby discretion must be governed.’ Mr. Chief Justice Hughes has stated that the power must be limited by boundaries, circumscribing the limitations upon that power. Standards are difficult to define because of variable nature thereof. They have been referred to as conditions, restrictions, limitations, yardsticks, guides, rules, broad outlines and similar synonymous expressions hereinafter set forth. It has been held that in the creation of administrative tribunals the power given them must be ‘canalized’ so that the exercise of the delegated power must be restrained by banks in a definitely defined channel.”
Later in State, ex rel. v. Fadely, 180 Kan. 652, Syl. ¶ 7, 308 P.2d 537 (1957), the court stated:
“The legislature may not delegate its power to make laws but may enact a law in general terms which confers upon an officer or board administrative duties to enforce and apply the law, and, to accomplish that end, to ascertain the existence or nonexistence of some future fact, event or condition which the officer or board is required to ascertain; but, the statute must prescribe reasonably clear standards by which those vested with the duty to make the statute operate will do so in the manner intended.”
Mr. Chief Justice Hughes delineated the position of the U.S. Government in Panama Refining Co. v. Ryan, 293 U.S. 388, 432, 79 L.Ed. 446, 55 S.Ct. 241 (1935), where he stated:
“[W]e are concerned with the question of the delegation of legislative power. ... As the court said in Wichita Railroad & Light Co. v. Public Utilities Comm’n., 260 U.S. 48, 59 [67 L.Ed. 124, 130, 43 S.Ct. 51]: ‘In creating such an administrative agency the legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function’.”
The doctrine of the separation of powers is a fundamental principle insuring the checks and balances essential to a constitutional democracy, such as ours. It was well stated in Coleman the lawmaking function is delegated by the people, through the constitution, to the legislature and cannot be re-delegated. However, it has been held permissible to enact a law in general terms and delegate the power to apply it to an executive agency under standards and guidelines provided by the legislature. State, ex rel. v. Fadely, 180 Kan. 652.
In the instant case, the people of Kansas adopted Article 7, § 5, of the constitution: “The state may provide by law for unemployment compensation and contributory old-age benefits and may tax employers and employees therefor . . . .” under the authority of which the Employment Security Act, K.S.A. 44-701 et seq., was passed. In the context of appellants’ second specification of error they attack one section, K.S.A. 1975 Supp. 44-710a, of the act as being unconstitutional on the grounds it amounts to legislation by an administrative agency — The Department of Human Resources.
From the cases, cited herein, we know the legislature is prohibited from delegating its lawmaking authority but may delegate the power to apply a law to an administrative agency if it provides adequate standards and guide rules to the agency. State, ex rel., v. Hines, 163 Kan. 300.
Let us examine K.S.A. 1975 Supp. 44-710a to determine if it provides an adequate standard and guideline to the Department of Human Resources to meet the constitutional requirements. K.S.A. 1975 Supp. 44-710a provides a method of classifying contributing employers according to experience based on a computed reserve ratio. It further provides a method for determining 21 approximately equal rate groups based on reserve ratios. The legislature also provides a method and schedule for determining the planned yield and rates which are to range from 0% to 3.6% on taxable wages to fund the planned yield.
The foregoing is an abbreviated summary of a 2!4 page statute which sets the standard and guideline provided by the legislature to the Department of Human Resources for computing the unemployment tax rates of contributing employers. The question is: Does the legislative guideline provided by K.S.A. 1975 Supp. 44-710a comply with the constitutional restrictions governing the delegation of powers?
73 C.J.S., Public Administrative Bodies and Procedure § 30, p. 325, provides some assistance in answering the question:
“Notwithstanding the general rule prohibiting the delegation of legislative functions to administrative bodies, an admixture of governmental powers may be conferred on an administrative officer or board, if there is no delegation of actual legislative power or complete surrender of judicial review. Accordingly, where the legislature sufficiently prescribes a policy, standard, or rule for the guidance of the administrative body, or otherwise confines it within reasonably definite limits, authority may be delegated to the administrative body to carry out the legislative purposes in detail, and to exercise administrative power to regulate and control. Moreover, administrative officers may be authorized to exercise administrative discretion in the application of laws enacted by the legislature, and such discretionary power delegated to an administrative agency is not ‘legislative’ in violation of the Constitution, if the law furnishes a reasonably clear policy or standard of action, which controls and guides the administrative officers in ascertaining the operative facts to which the law applies so that the law takes effect on such facts by virtue of its own terms and not according to whim or caprice of administrative officers.”
We can not imagine a more detailed guideline for administering a law than that provided in K.S.A. 1975 Supp. 44-710a. The administrative agency was delegated only the task of computing the tax rate pursuant to the legislative formula. We see nothing in the “array method” of computation involving administrative dis cretion which could be called whim or caprice. We are of the opinion the legislature did not delegate legislative authority to the Department of Human Resources in violation of the constitution.
As a parting shot under the second issue of error, appellants argue the “array method” of computing contribution rates under K.S.A. 1975 Supp. 44-710a was not followed by the Department of Human Resources in determining appellants’ rate. This is a question of fact. On appeal this court’s jurisdiction is confined to questions of law if the Secretary of Human Resources’ findings are supported by some evidence, absent fraud. K.S.A. 1978 Supp. 44-710b(b). There is no allegation or evidence of fraud against the Secretary of Human Resources and we find there is evidence to support his findings. The findings of the Secretary of Human Resources will therefore not be disturbed. We are of the opinion appellants’ second issue of error is without merit.
Appellants argue as a third issue of error, the “array method” of computing unemployment tax rates pursuant to K.S.A. 1975 Supp. 44-710a establishes improper legislative classifications of contributing employers resulting in deprivation of equal protection of the law contrary to the Fourteenth Amendment to the United States Constitution and Article 7, § 5 of the Kansas Constitution. The Fourteenth Amendment states:
“[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” § 1.
Article 7, § 5 of the Kansas Constitution provides: “The state may provide by law for unemployment compensation and contributory old-age benefits and may tax employers and employees therefor . . . .”
Appellants’ constitutional challenge does not go to the Kansas constitutional provision since it is merely a delegation of unlimited authority to the legislature to provide unemployment compensation and tax for it. If there are limitations to the legislative authority, it is provided by the Fourteenth Amendment of the U.S. Constitution. We will therefore confine our discussion of this issue of error to the equal protection clause of the Fourteenth Amendment.
The equal protection clause of the Fourteenth Amendment was previously considered only as a part of due process. The Fifth Amendment has no equal protection provision. However, at the time of the adoption of the Fourteenth Amendment it was feared former slaves would be separately classified for punitive measures by the states so Congress specifically spelled out the equal protection provision. Mott, Due Process of Law § 105, p. 275 (1926). By judicial construction equal protection has been imposed on the Congress under the Fifth Amendment making due process and equal protection virtually indistinguishable.
In Ross v. Moffitt, 417 U.S. 600, 609, 41 L.Ed.2d 341, 94 S.Ct. 2437 (1974), the court defined equal protection as follows: “ ‘Equal protection’ . . . emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable . . . .”
Appellants argue the “array method” of computing unemployment taxes unreasonably classifies distinguishable employers in the same rate assessment bracket. The computation procedure does not distinguish between those employers with good or those with poor unemployment records.
Let us examine the “array method” of computation in light of this accusation. It is provided for in K.S.A. 1975 Supp. 44-710a. According to Webster’s New International Dictionary 152 (2d ed. 1935) “array” means to place in order. K.S.A. 1975 Supp. 44-710a requires contributing employers be placed in rate groups and then divided into 21 approximately equal parts based on reserve ratio and that rates be figured from 0% to 3.6% of taxable wages. The reserve ratio is computed by dividing an employer’s account balance by its average taxable payroll.
Employers in rate group 1 (those with most favorable reserve ratio) have 0% rate. They are eliminated from computation. Those with least favorable reserve ratio are given the maximum rate— 3.6% of taxable wages. In 1975 rate groups 18 to 21 inclusive were assigned a 3.6% rate. Next, after the tax produced by groups 18 and 21 is subtracted from the planned yield, the balance must be collected from rate groups 2 to 17 inclusive.
Appellants argue the method of computing the tax classifies employers with a good reserve ratio in the same rate group with employers who have an unfavorable reserve ratio; both paying the maximum rate. In 1975, Wesley Medical Center and St. Joseph Medical Center were in the same rate group with the construction industry. Hospitals have stable employment histories while the construction industry has a bad employment record because of its seasonal nature. The argument is partially correct but misleading. Appellants’ good employment experience soon qualified them for the lower rate.
Appellants also maintain all contributing employers will soon be placed in either the 0% rate group or the 3.6% rate group. They argue the demands of a high planned yield coupled with a large group of contributing employers qualifying by experience and rate reserve for 0% rate group will require all remaining to pay the maximum rate. They contend such classifications are arbitrary and capricious and therefore unconstitutional. Appellants’ argument concerning future rates is speculative and unsupported by any evidence, and therefore cannot be considered by this court. However, appellants’ classification in the maximum rate group with employers of a less favorable reserve ratio must be tested on the constitutional standard.
It is a well established rule of law that legislative classification in tax matters is presumed to be valid and will not be interfered with by the judiciary in the absence of fraud, corruption or arbitrary conduct. Gorges Chrysler-Plymouth, Inc. v. Cobler, 212 Kan. 664, 512 P.2d 504 (1973); Gordon v. Hiett, 214 Kan. 690, 522 P.2d 942 (1974).
71 Am. Jur. 2d, State and Local Taxation §§ 170, 171, pp. 491-494 has the following comment:
“Neither the Fourteenth Amendment of the Federal Constitution nor the equality and uniformity requirements of the state constitutions prohibit the making of classifications in state legislation relating to taxation. The power of a state to make reasonable and natural classifications for purposes of taxation, it has been said, is clear and not questioned. Such classifications may be made with respect to the subjects of taxation generally, the kinds of property to be taxed, the rates to be levied or amounts to be raised, or the methods of assessment, valuation, and collection. Granting the power of a state to make classifications in tax matters, it has been said, we must then grant the right to select the differences upon which the classification shall be based.”
“The power to make classifications with respect to taxation is with the legislature in the first instance, and its discretion in the matter is very broad and covers a wide range. In this connection, it has been variously said that in taxation there is a broader power of classification than in some other exercises of legislation ....
“Legislative classifications in tax matters are presumptively valid, the burden being on the challenger to prove such classifications do not rest upon a reasonable basis, and will not be disturbed by the judiciary in the absence of unreasonable, discriminatory, or arbitrary action.”
In Carmichael v. Southern Coal Co., 301 U.S. 495, a case we cited in the due process discussion and which we again rely upon with respect to equal protection, the constitutionality of the Unemployment Compensation Law was questioned. Mr. Justice Stone stated for the court:
“It is not a valid objection to the present tax, conforming in other respects to the Fourteenth Amendment, and devoted to the public purpose, that the benefits paid and the persons to whom they are paid are unrelated to the persons taxed and the amount of the tax which they pay — in short, that those who pay the tax may not have contributed to the unemployment and may not be benefited by the expenditure. . . . Nothing is more familiar in taxation than the imposition of a tax upon a class . . . who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied.” pp. 521-522.
In Finkel, Nadler and Goldstein v. Levine, 46 App. Div. 2d 196, 198, 361 N.Y.S.2d 941 (1974), it was stated:
“The decision made by the Legislature to distribute the cost of the benefits among the various base period employers is not without some justification since it can reasonably be said that there is a nexus between such employments and the amount of benefits to which claimant would be entitled. The mere fact that inequities may occasionally arise do not provide a sufficient basis for striking down the legislation as unconstitutional. . . .
“In this instance, we are without the power to question the wisdom of this legislative means of distributing the costs of unemployment insurance benefits since it cannot be said that the measures are so extreme as to be arbitrary.”
It has also been held that classification for tax purposes to be valid must have some reasonable relationship to the object or purpose of the legislation. Ohio Oil Co. v. Conway, 281 U.S. 146, 74 L.Ed. 775, 50 S.Ct. 310 (1930).
After carefully reviewing the facts and law in this case we are of the opinion the Kansas Employment Security Act does not violate the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. The classification of contributing employers bears a reasonable relationship to the purpose of the legislation. And though there are inequities in the rate group classification they are not arbitrary, unreasonable, capricious or fraudulent. The act provides each employer the opportunity to improve his rate classification by showing a favorable employment record. For instance, Wesley Medical Center’s contribution rate improved from 3.6% in 1975 to 1.0% in 1977. We find no merit to appellants’ third issue of error.
Finally, as a fourth issue of error appellants argue the two year and three month delay between the administrative hearing and the Secretary of Human Resources’ decision thereon was an oppressive and capricious abuse of discretion. We find the delay by the Secretary in rendering his decision unconscionable but in the absence of proof of damage to appellants, it is harmless error.
The judgment is affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
Mrs. S. J. Mouriquand appealed to the district court of Chautauqua county from the award of commissioners condemning a right-of-way through lands owned by her. The condemnation commissioners awarded as damages the sum of $202.50. Three acres of land were taken for the right-of-way. The jury returned a verdict of $772.10. Judgment was entered upon the verdict. The railroad company excepted to the rulings and judgment of the court, and brings the case here.
Upon the trial there was evidence tending to show that in constructing the railroad across the premises in controversy 137 peach trees, 9 apple trees, 2 cherry trees and 1 plum tree were taken or destroyed. Some of the witnesses, who knew the value of peach, apple, cherry and plum trees in the orchard, and had actual knowledge of the trees taken from the premises, testified that the peach and apple trees were worth $5 each, and the plum and cherry trees $2 each. Two hundred twenty-eight dollars and fifteen cents were allowed for the trees taken.
Complaint is made because D. C. Chilcote was permitted to testify as to the value of the fruit trees when he was not acquainted with the particular trees taken or destroyed by the railroad. We think his evidence was competent. He testified that he was fifty years of age; that he lived two miles from the premises; that he had resided there six years; that he had been over the premises very frequently; that he had followed all his life farming and cattle-raising; that he had had experience in growing orchards of fruit trees; that he had put out in his life-time, three or four different orchards; that he knew at the time of the construction of the railroad through the premises that there was “quite a nice little orchard upon it,” and while he could not say that he knew the particular trees taken, he knew what fruit trees planted in such an orchard were reasonably worth at the time of the construction of the road. He had, therefore, such knowledge and experience as enabled him to form an opinion as to the value of the trees. “It is not necessary,” said Johnson, J., in case of Whitbeck v. N. Y. C. Rld. Co., 36 Barb. 644, “that he [the witness] should actually have seen or been familiarly acquainted with the trees in question. It was enough that he was acquainted with the fruit business in that neighborhood and the value of similar property there.” (See Lawson on Opinion Evidence, 19-)
Complaint is further made that the court erred in instructing the jury concerning the view of the premises which they bad been permitted to make. One or two lines of the instructions are open to criticism, but we do not think, in view of the decision. in City of Topeka v. Martineau, 42 Kas. 387, that the instructions were so incorrect as to reverse the judgment. In the Martineau case, this court ruled that a direction to the jury to use the result of their observation in connection with the sworn evidence was not erroneous. In the present case the court said, among other things, to the jury: “You have also been permitted to go in a body and view the premises, in addition to hearing this evidence, and you are at liberty to take into consideration in making up your verdict whatever you may have seen in and about the premises.”
With the admonition that they were not to rest their verdict solely on what they learned at the view, it might have been better to have gone no further in the instruction referred to, as the object of permitting the jury to view the premises is to enable them to intelligently understand and apply the testimony which has been introduced before them. But when the court directed the jury to disregard any evidence, it must be construed with the following language: “In making up your verdict you should consider the evidence, and give it fair and impartial consideration, and you will also take into consideration your own view of the premises.” The jury were permitted by the whole instruction to decide between the conflicting evidence upon their own view of the premises.
Had the jury disregarded all the sworn evidence, and returned a verdict upon their own view of the premises, then it might be said that the evidence which the jurors acquired from making the view had been elevated to the character of exclusive or predominating evidence. This is not allowable. The evidence of the witnesses introduced in the court on the part of the land-owner, supports fully the verdict. If the verdict was not supported by substantial testimony given by witnesses sworn upon the trial, we would set it aside, but as the jury only took into consideration the result of their view of the premises, in connection with the sworn evidence produced before them, to determine between conflicting evidence, the instruction was not so erroneous as to require a new trial.
Complaint is also made that the special findings conflict with the general verdict. The 13th interrogatory submitted to the jury reads:
“Q,. What were the several elements and sources.of damages which make the aggregate of all of the damages sustained by plaintiff? Give each item separately, with the amount of such damages. A. Trees, $228.15. Pond, $100. Opening gates, $250. Land taken for right-of-way, $60. Damage to land north and south of road, $61.85.”
Adding these items, the total amount of damages according to the special findings, is $700, but the general verdict was $772.10. It appears, however, under the instruction of the court, that the jury allowed interest in their general verdict. Adding interest to the several itemized amounts in the special findings, and there is no conflict between these findings and the general verdict.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
StrANG, C.:
This was a bearing on a motion by the defendant in the district court, in a case there pending, in which the title to certain lots had been settled against him, to ascertain the amount due from the plaintiff in the case, for taxes, penalties and costs paid by him on said lots, together with interest thereon, and to have said amount declared a lien on said lots. The matter was referred to Byron Roberts, as referee. Mr. Roberts heard the parties and made a report, but there being some technical objection to the report, it was by consent of both parties set aside; whereupon, the matter was again referred to Mr. Roberts, the court, at the time, making an order directing the referee how to proceed to ascertain the amount of taxes, penalties, costs and interest due from the plaintiff, the successful party in the suit, to the defendant. The referee again heard the parties and made a report, which is complained of by the plaintiff here.
The insufficiency of the record renders it impossible for us to investigate the findings of the referee. The most we can do is to examine the order of the court which furnishes the basis for the findings of the referee; and refer to certain of fers of the plaintiff to make certain proof, which offers are contained in what purports to be a bill of exceptions. The plaintiff claims in his brief that these offers were rejected by the referee, but the record shows that they were received by the referee, and the record is controlling. But a glance at the offers shows that they were not made in accordance with any rule for the introduction of evidence. There was no witness produced, sworn and questioned, by whom it was proposed to make the proof offered, nor were any records produced, identified or offered, by which the proof was to be made. There was nothing but a bare statement by the party of a set of conclusions that he said he could prove. Such statements are not offers to prove anything. An offer to prove must be supported by a witness, or record, or some form of evidence, by which the offer can be made good. The plaintiff complains of the order of the court. He says the court directed the referee to find when the action of ejectment for the lots was decided, and says that a decision of the ejectment suit had nothing to do with the question of taxes. That she is entitled to twenty per cent, interest on sums paid up to the time when the amount of taxes is found by the court, without any regard to the decision of the ejectment suit, or the settlement of the title to the lots. The contention of the plaintiff below is, that after the decision of the ejectment case, the rate of interest on the sums paid is seven per cent. This is the view the court took of it, in making the order complained of.
We think the court was right; and that after the decision against the defendant below, on the question of title to the lots in litigation, if for any reason the amount of taxes is not immediately ascertained, the rate of interest thereafter is but seven per cent.
This seems to have been the real difficulty in the case. It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, C. J.:
The Stafford County Grain Company brought this action to recover $1989, the price of two carloads of wheat, from the Rock Milling and Elevator Company, of Hutchinson, Kan. The wheat was sold by plaintiff to defendant, one car on June 29, 1910, and the other on September 12 of the same year. The purchase and receipt of the wheat is admitted by the defendant, and there is no dispute either as to the quantity of wheat or the price to be paid for it, but the defendant insists that full payment of the price had been made in the manner directed by an agent of the plaintiff who at least had apparent authority to give directions as to the manner of payment. The plaintiff was a cooperative company of farmers incorporated for the purpose of marketing the grain grown by themselves, and the directors of the company employed J. C. Van Fleet as the manager to sell their grain, and he was required to deposit the funds of the company in the St. John National Bank. The plaintiff had been selling grain to the defendant for the period of about five years, amounting to about 200 carloads, and except in the case of the two cars in question all of the sales were cash transactions and all the dealings between the parties were had with the defendant’s agent, Van Fleet. Sometimes he forwarded cars to the defendant with a bill of' lading attached; sometimes an open shipment was made and the wheat purchased at the market price, and in such a case the price was paid by sending a check payable to the plaintiff; and at other times, when they did not agree on the price of wheat, the car was forwarded to other dealers. As to the two cars in question, Van Fleet telephoned to the defendant not to send the price of the wheat to plaintiff,, but to pay it to Goffe & Carkener, Kansas City grain brokers, who had an office or shop in Hutchinson in the building occupied by the defendant. On one side it is claimed that this office was an ordinary bucket shop, and on the other side it is contended that while the concern dealt in futures, it was doing a lawful business, which contemplated a delivery of the grain in the future. On the request of Van Fleet the price of the first car, which amounted to $954, was held by the defendant and was paid out as follows: On June 29, 1910, the day of sale, $150; on July 1, $200; on July 14, $100; on July 28, $350; and on August 16, $154. For the second car, which contained 1150 bushels and was sold for $1035, the defendant paid $150 on September 14, 1910, which was two days after the wheat was sold, and another $200 on the same day, $200 on September 27, and $485 on September 29. The grain company had never speculated in grain, but it; appears that Van Fleet had been speculating on his own account on the board of trade through Goffe & Cark-ener, and it is conceded that defendant knew that Van Fleet was speculating, and also knew that this money which he directed should be put up in margins had been lost in speculative transactions with the brokers. After the evidence had been introduced the court fairly instructed the jury on the question of agency, the scope of a general agent’s authority to direct the manner of payment, but stated that the agent had no right to direct the payment of his individual debts out of his principal’s money, and then left it to the jury to determine from the evidence whether or not the defendant, in the exercise of ordinary prudence, should have known that Van Fleet, in giving the directions as to payment, was acting outside of his authority.
The court, however, took from the jury the question whether money of the plaintiff which was held by defendant for a considerable time and then paid out on the order of Van Fleet to the grain brokers in driblets was a gambling transaction. In the ninth instruction the jury were told that:
“No testimony has been offered to show that the transaction between Van Fleet and Goffe & Carkener was a gambling or bucket shop transaction, or that it was in any way illegal to the knowledge of the., defendant, and you will therefore entirely disregard that question in making up your verdict.”
There is little, if any, ground for complaint of the other instructions, but the transaction in question has some of the marks of illegality, and the knowledge of its character was brought so close to the defendant that the nature of the transaction should have been submitted for the determination of the jury. Under our statute pretended purchases and sales of commodities on the basis of market quotations, where the parties do not contemplate a bona ficle receipt and delivery of the commodities, are gambling transactions. (Gen. Stat. 1909, §§ 5167-5169.) A contract for the sale, and delivery of a commodity at a future time, where there is a bona fide intention to make a delivery in accordance with the contract, is not of itself unlawful. (Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 248, 25 Sup. Ct. Rep. 637, 49 L. Ed. 1031.) If, however, the sale is a mere pretense, a wager on thé rise and fall of market prices, and there is no intention to receive or deliver the commodity, it is contrary to public • policy ■and a violation of the statute. In a recent case it was said that:
“Our statute was not intended to prevent contracts for future delivery of commodities when entered into in good faith and with an actual intention of fulfillment; its purpose was to suppress mere speculation where the commodity dealt in exists only in imagination, where no delivery is contemplated, but where, on the contrary, it is expected that the parties will settle upon the difference in the speculative market.” (Investment Co. v. McFarlin, 93 Kan. 526, 529, 144 Pac. 842.)
If the dealings in question are gambling transactions and the defendant knew of their character and participated in the illegality, the payments made to the brokers can not be regarded as payments on the wheat purchased from plaintiff. Goffe & Carkener, the brokers, dealt in futures, and their agent who conducted the business at Hutchinson testified that the contracts, made by them for customers contemplated a delivery when a settlement was made. Van Fleet, however, had. no wheat of his own to sell and deliver, and he stated that he was speculating for himself, and there is testimony in the record tending to show that he was dealing in imaginary wheat. While the dealings were in the form of contracts for future delivery, such forms are sometimes used as a cloak for mere betting on what the market prices will be at future times. It has been said that:
“It will not do to attach too much weight or importance to the mere form of the instrument, for it is quite certain that parties will be astute in concealing their intention, and the real nature of the transaction, if it be illegal. It may safely be assumed that parties will make such contracts valid in form; but courts must not be deceived by what appears on the face of the agreement.” (Barnard v. Backhaus, imp., 52 Wis. 593, 600, 6 N. W. 252, 9 N. W. 595.)
In that case it was said that:
“To uphold a contract in writing for the sale and delivery of grain at a future day, for a price certain, it must affirmatively and satisfactorily appear that it was made with an actual view to the delivery and receipt of the grain, and not as a cover for a gambling transaction.” (Syl. ¶1.)
. So courts scrutinize closely the transactions made by those who deal in futures and look beyond and behind the mere form of the agreement and at the circumstances connected with it. In Investment Co. v. McFarlin, supra, it was contended that as a legal contract for future delivery might be made, certain averments of fact were not inconsistent with legality, but the court said that it required too great a strain upon the credulity of courts to hold, on the facts stated, that the parties contemplated actual sales and deliveries. In Carey v. Myers, 92 Kan. 493, 141 Pac. 602, where there was a claim that the contracts were real sales and where there was a finding of validity by the trial court, this court looked into the evidence and held that the transactions were but pretended sales and were made in violation of the statute.
Now, it is conceded that Van Fleet was speculating on his own account, and the defendant, in a written statement by its secretary and treasurer, recognized that the proceeds of the cars in question were lost by Van Fleet in speculative transactions. In view of the business which had been previously done by the defendant with Van Fleet and the company he was representing, there were good reasons for George Gano, who was conducting the business for defendant, to know that the* transactions by Van Fleet were not bona fide sales. The plaintiff had never speculated, nor had it ever done what is called a “hedging business” through the defendant or any one else. George Gano was conducting the business of defendant, and his brother, Paul Gano, formerly employed by defendant, had a one-room office in defendant’s building, in which there was a telegraph instrument, two or three desks, and a blackboard that could be used for furnishing market quotations. The brokers represented by Paul Gano had no grain elevator and did not buy or sell grain at Hutchinson. Van Fleet says that in speculating in wheat and in advancing money on margins he usually talked to Paul Gano, but sometimes with George Gano, and that he directed one or other of them to turn over so much money on margins. The defendant had never acted as a depositary for the plaintiff nor dealt with plaintiff otherwise than on a cash basis. The unusual course of holding the plaintiff’s money through a period of about two months and dribbling it out to an agent of brokers dealing in futures on the request of Van Fleet, the close connection of George Gano with the agent of the brokers and the transactions in which he was engaged, and the testimony of Van Fleet that the defendant may have known of the character of the transactions, all together furnish a basis for an inference that the transactions were illegal and that the defendant was aware of their file- gality. The good faith and honesty, of the transactions, and whether the defendant took part in them knowing that they were pretended rather than actual sales, were questions for the determination of the jury. If it had been found upon a proper submission of the question that the transactions were real and valid, the finding might have been upheld, but there is sufficient testimony tending to show illegality with the knowledge of the defendant to take the case to the jury.
It must be held that the giving of the ninth instruction was error, and therefore the judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
BURCH, J.:
The plaintiffs ask for a peremptory writ of mandamus commanding the defendant as judge of the district .court to set aside an order of the court.
Briefly stated, the essential facts disclosed at the hearing are these. The plaintiffs own a tract of land which they leased for oil and. gas purposes. The American Gas Company has gas rights in an adjoining tract. Two producing wells were bored on the plaintiffs’ land and several producing wells were bored on the American Gas Company’s land. Pipes were laid on the plaintiffs’ land connecting all these wells, whereby gas produced was conducted to a common point on the plaintiffs’ land. A building was erected there in which were installed a meter, a pressure gauge, and other gas appliances. From this point gas was conducted to a pipe line laid in the highway alongside the plaintiffs’ land. The American Gas Company became the plaintiffs’ lessee, and their claim is that the American Gas Company became such lessee upon the condition that if rentals and royalties were not paid they might terminate the lease and take possession of the pipes, building, and gas appliances on their land. Rentals and royalties were not paid. The American Gas Company became bankrupt, the plaintiffs undertook to forfeit the lease, and pursuant to their claimed contract rights they took possession of the pipes, buildings, and gas appliances on their own land. The appliances were chained and padlocked in such a way as to prevent the flow of gas into the pipe line in the highway. The pipe line in the highway belonged to the Mid-Continent Development Company. In August, 1911, in an action entitled L. E. Inscho v. The Mid-Continent Development Company, a receiver was appointed for the development company. Subsequently the court authorized the receiver to purchase all the gas furnished by the American Gas Company, and gas obtained in this way was distributed to consumers. Neither the plaintiffs nor the American Gas Company were parties to the receivership suit and the receiver had no possession of the property involved in this suit, or authority over it'. When the plaintiffs took possession of the means'whereby gas which the receiver was authorized to buy was delivered, the receiver made an ex 'parte application to the court for an order, which was granted without notice in the following terms:
• “It is therefore considered, ordered and adjudged that George Holmes as employee of the American Gas Co. remove the obstructions preventing the flow of gas from the American Gas Company’s pipe lines to the Mid-Continent Development Company’s pipe line and that James F. Getty and George Bishop no. longer maintain any obstruction to the said flow of gas and in no way interfere with this order, until the further orders of this court.”
Holmes was in fact an employee of the receiver and proceeded to execute the order- by breaking into the building on the plaintiffs’ land and removing locks and chains which obstructed the flow of gas into the pipe line. The order was made on November 11, 1914. After its execution, and on November 14, the plaintiffs moved the court to set aside the order on the ground that it had been made witliout jurisdiction. After a hearing the court modified the order in such a way as to permit the plaintiffs to cut off the flow of gas from their own wells but allowed the order to stand as to gas flowing from the American Gas Company’s wells. The court disclaimed jurisdiction over the plaintiffs, but believed that the public, to whom the receiver was distributing gas coming from the American Gas Company’s wells, should not have its supply cut off by any summary or arbitrary act of the plaintiffs, and on that ground reserved further judgment until it could consider the proper course to be pursued. Thereupon the plaintiffs brought the present action, which the receiver defends for the j udge of the district court.
This court has jurisdiction to issue the writ prayed for. It is granted original jurisdiction in proceedings in mandamus by the constitution. (Art. 3, § 3.) This jurisdiction is plenary and may be exercised to control the action of inferior courts, over whom this court has superintending authority. (In re Petitt, 84 Kan. 637, 114 Pac. 1071.)
The action of mandamus can not be used as a substitute for appeal, nor in any case where a plain and adequate remedy at law exists. In this case, however, there was no action pending against the plaintiffs in the district court. Without having jurisdiction of the plaintiffs and without having jurisdiction of the property, the district court, without notice, issued a mandatory injunction which in effect adjudicated the plaintiffs’ rights and deprived them of the peaceable possession of property which no one having a claim upon it was disputing. When the court’s lack of authority was called to its attention it kept the plaintiffs in suspense by reserving final judgment indefinitely. Meanwhile the plaintiffs were in a situation the practical effect of which was to destroy dominion not only over property which they claim but over property which was indisputably theirs. They were obliged to let the receiver, with whom they did not desire to deal, take the gas from their wells or else sit by and run the risk of the common field being depleted by the flow from the American Gas Company’s wells. Under these circumstances the plaintiffs were not obliged to submit to the jurisdiction of the district court, nor to await its pleasure in finally disposing of the case, nor to adopt the slower remedy of appeal, if indeed they were in a situation to. appeal. Their only adequate remedy was one which would free them immediately from the embarrassments of the order. (State v. Graves, 66 Neb. 17, 92 N. W. 159; Tawas &c. R. R. v. Iosco, Circ. Judge, 44 Mich. 479, 7 N. W. 65; Detroit v. Circuit Judge, 79 Mich. 384, 44 N. W. 622.)
In the case of State v. Graves, supra, Reynolds was in possession of land upon which there were removable crops. Phillips brought an action against him to restrain him from exercising proprietary rights over the land and crops.' A temporary injunction was issued by Graves, judge of the district court, restraining Reynolds from trespassing on the land and from removing or attempting to remove the crops. Thereupon Reynolds, using the name of the state, brought an action of mandamus in the supreme court to compel the district judge to vacate the provisional order. In granting the writ the court said:
“The ground upon which Phillips proceeds in the actions brought by him against the relator is that the relator’s lease is invalid and his possession, therefore, unlawful. Whether this position is tenable we need not determine. It may be that the lease is void. Cónceding that it is,, the fact still remains that relator entered under it and was in actual, exclusive ■and peaceable possession of the land, and of the crops growing thereon at the time the injunctions were allowed. This being so, the necessary effect of the orders made by respondent, if heeded or enforced, would be to dispossess the relator, to exclude him from the property and transfer his possessory right to Phillips, who was left free to enter and reap where he had not sown. Phillips’was, it is true, claiming the land, but he did not occupy it, and the injunctions were therefore not granted for the purpose of preventing a threatened invasion of a present actual possession. Clearly the action of respondent in attempting to take from relator without a hearing or an opportunity to be heard, the possession of real and personal property which he claimed, and still claims, was rightfully his, can not be justified as an exercise of judicial power. The provisional injunction was never designed to transfer the possession of property from one litigant to another. A court or judge can not thus dispossess a party and then compel him to produce evidence and establish his title in order to obtain restitution. ‘It has been decided repeatedly,’ says Mr. Justice Campbell, in Tawas & B. C. R. Co. v. Iosco Circuit Judge, 44 Mich., 479, ‘that any decree or order divesting possession or rights on a preliminary inquiry is illegal and void, so that no one need respect -or obey it.’ In Calvert v. State, 34 Nebr. 616, a case which is in no material feature distinguishable from the one at bar, it was held that the provisional injunction allowed by the district judge was absolutely null. In the opinion written by Maxwell, C. J., it is said: ‘A temporary injunction merely prevents action until a hearing can be had. If it goes further, and divests a party of his possession or rights in property, it is simply void.’ This statement seems to be fully sustained by the adjudged cases in other jurisdictions, and we have found no decision giving color or countenance to a contrary view. But whether the action of respondent be regarded as absolutely void or only voidable, as his counsel contends, it was •manifestly an abuse and perversion of process that ought to be speedily corrected.
“We have, of course, authority to review and reverse it in an appellate proceeding, but, under the circumstances here disclosed, that remedy is not, in our judgment, an adequate one. The rights of the relator can be adequately protected only by the prompt rescission of the orders of which he complains; and the power to grant this relief by mandamus is certainly vested in this court. The superintendent authority of the king’s bench over inferior tribunals is, to the extent' that it may be exercised by the use of the writ of mandamus, included in, and part of, the original jurisdiction given by the constitution to the supreme court.” (p. 21.)
No other district court had authority to control the action of the Wyandotte district court, and consequently this court was the only one to which the plaintiffs could apply for the desired relief.
That the order in question was made without jurisdiction is scarcely debatable. The plaintiffs were not parties to the receivership suit. Neither was the American Gas Company a party to that suit. The American Gas Company had a claim against the receiver for the price of gas which had been delivered to him, _ny had presented and was litigat _ct did not virtually subject the gas con a receivership. The property in controversy w’íjs not involved in the receivership suit, and the receiver, a simple purchaser and distributor of gas, could not in effect condemn the building, pipes, and gas appliances on the plaintiffs’ land, either in his own interest or in the public interest, any more than he could condemn the gas from the plaintiffs’ wells. In any event the court’s authority in the receivership suit could not be extended to an adjudication of the "plaintiffs’ claimed rights, whatever they were and whether they were valid or invalid, without making them parties or giving them notice or allowing them an opportunity to be heard. No provision was made for any of these things.
“If the plaintiff has any rights, the law guarantees to it a time, and place, and tribunal to enforce them. Those rights can not be destroyed by a decree to which it is neither party nor privy.” (A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127, 136.)
“The trial court undertook to vest the receiver with the custody of other valuable property which was in no way involved in the action wherein the appointment was made. . . . When the court undertook to reach out and take custody and control of property which was not the subject-matter of the controversy, it went •outside its appointed sphere and its orders in respect to such property were nullities. The court had no more authority over that property than it would have had over the square on which the state-house stands. The fact that the other real estate, which may be termed the outside property, was or had been in litigation between the same parties did not enlarge the court’s jurisdiction in the case in which the receiver was appointed. The outside property was entirely distinct from that involved in the action wherein the receiver was appointed, and the orders of the court relating to the former were in excess of its jurisdiction, and to that extent, at least, absolutely void.” (Bowman v. Hazen, 69 Kan. 682, 697, 77 Pac. 589.)
It is suggested that a federal court has taken possession of the assets of the American Gas Company and has caused the pipes in controversy to be disconnected from the receiver’s pipe line, and consequently that a writ of mandamus to vacate the void order can serve no purpose. What the future course of the litigation in the federal court may be can not be known, and if the order should stand the plaintiffs might at some time suddenly discover themselves to be in contempt of the district court. Besides this, it is no answer «for the district court to say that another court has indirectly afforded the plaintiffs protection from the enforcement of the void order.
Finally it is urged that the plaintiffs voluntarily made a general appearance in the receivership suit by the terms of the motion to set aside the order. The motion recited that the plaintiffs were not parties to the Insho suit, that the property affected did not belong to the American Gas Company, but belonged to the plaintiffs and was exclusively on their land, that they had not sold gas to the receiver or consented to the receiver’s use of the pipes, and that the order was in effect a confiscation of the plaintiffs’ property, made without jurisdiction. The relief asked was that the order be dissolved, and the motion stated that the plaintiffs appeared specially and for the purpose of the motion only.
Delivering the opinion of the court in the case of Schwab v. Mabley, 47 Mich. 512, 11 N. W. 294, Judge Cooley said:
“Defendants are brought into court either by the service of process or some substitute therefor, or by voluntary appearance; and the voluntary appearance may be either general and for all purposes, or specially and for some particular purpose. Where the purpose to make it special appears, the court can not enlarge it and make it general, for the extent to which defendant submits himself to the jurisdiction when he thus voluntarily comes in, is determined by his own consent.”, (p. 515.)
There is no infallible test for determining when the purpose of an appearance is special and when general. Of course, the meré statement that the appearance is special is not controlling, although it may forestall the ordinary presumption that an appearance is general. Apparently the test applied by the supreme court of the United States is whether or not the party applying becomes- “an actor in the cause.” (Merchants Heat & L. Co. v. Clow & Sons, 204 U. S. 286, 290.) In reality this supposed test only states the problem in another way.
In the case of Deming Investment Co. v. Ely, 21 Wash. 102, 57 Pac. 353, it was said:
“The test as to whether an appearance is general or special is usually the relief asked. If the granting of the relief requested in the appearance is consistent with a want of jurisdiction over the person, the defendant may appear for a special purpose, without submitting himself to the j urisdiction of the court for any other purpose.” (p. 107.)
In the case of Blackburn and another v. Sweet, impleaded, 38 Wis. 578, it was said:
“Where the moving party asks some relief which can only be granted upon the hypothesis that the court has jurisdiction of the cause and person, this is a submission to the jurisdiction, and waives all defects in the service of process.” (p. 580.)
In the early case of Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385, which has been followed many times, the syllabus reads:
“A motion in a cause based wholly on an alleged want of jurisdiction is not an appearance generally, or a waiver of any irregularity in the proceedings by which a party is attempted to be brought into court; but a motion, grounded wholly or in part upon error in the judgment, or upon irregularities, aside from the question of jurisdiction, is such waiver as constitutes an appearance.” (Syl. ¶ 3.)
The plaintiffs’ motion may be read in such a way as to indicate a general submission to the jurisdiction of the court, but here, as elsewhere in procedure, substance alone is to be regarded, and it is quite clear that the sole purpose was to challenge jurisdiction. The plaintiffs did not ask to be made parties, and the relief sought, the dissolution of the order, is entirely consistent with want of jurisdiction, and could be granted upon the hypothesis that the court had no jurisdiction. This relief was not asked because of error in granting the order or on the ground of irregularity aside from the question of jurisdiction. The plaintiffs desired no decree that they owned the property. Indeed, it would have been impossible for the court to adjudicate that fact as the case stood- — on a simple motion and in the absence of the American Gas Company, which was not a party. The facts concerning the ownership and location of the property were stated to show the character of the right invaded, that the plaintiffs were claimants of absolute property interests which the court lacked power to divest summarily by an ex parte order. Likewise the plaintiffs did not desire a decree that they were free from relations with the receiver in the marketing of gas and use of the pipes. The facts concerning those matters were stated to show that the plaintiffs were not related to the business of the receivership in any way which would give the court jurisdiction over them or over the property in controversy. Read in this way the motion is consistent throughout with the idea of a special appearance to set aside the order for want of jurisdiction. . While the plaintiffs ran some risk in thus attempting to exclude grounds of jurisdiction, the court is satisfied that such was their purpose, and such being their purpose the court will not enlarge the appearance to make it general. This court is all the more ready to adopt this conclusion because is seems to have been the view of the district court. The proposition that the plaintiffs made a general appearance is presented for the first time by the receiver in this court. The district court’s view was indicated at the close of the hearing as follows:
“The Court: I have jurisdiction over the receiver and the receiver and people under him have equities and they are in court and entitled to the protection, of this court to the extent of preventing any one cutting off the supply of the gas without right. Now I am not sure just what the rights are in regard to that pipe going across this land; but I don’t believe Mr. Bishop has any right to jump in there and tear up a main or close it off, that is, a general. supply pipe, from customers of wells back behind his land so as to keep it away from whoever acquires the right to use it. . . .
“Mr. Getty : They are using our land.
“The Court: This pipe runs across there and does not hurt your land as I get it. ... I have no more jurisdiction over Mr. Bishop than anybody else, but he should not interfere with the supply of gas to these consumers.”
The judge of the district court acted candidly and conscientiously. His solicitude for people who might be depending in part upon this supply of fuel and light in wintertime was commendable, and his reservation of final decision until he could satisfy himself fully as to the proper course to pursue was the result of this solicitude. Under these circumstances the present order will be that if the order of the district court be set aside within ten days from the filing of this opinion, this proceeding will be dismissed without costs, which are practically nominal, to either party.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from the death of the driver of an automobile, occasioned by a defective bridge. The plaintiff recovered and the defendant appeals.
The bridge spans Mission creek between Edwards-ville and Bonner Springs. The bridge is forty feet long and is in line with the roadway to the west but not to the east. The roadway leading to the bridge from the east is generally forty feet wide, sixteen feet of which is macadamized. Within twenty feet of the bridge the roadway narrows down to the width of the bridge, which is fourteen feet. The traveled portion of the road includes not only the part macadamized but level ground on each side' of the macadam, and when snow is on the ground the surfaced and unsurfaced portions are indistinguishable. An automobile driven westward toward the bridge along the north side of the road would, if it continued in a straight line, miss the bridge.
The deceased conducted an auto-livery business at Bonner Springs. About nine o’clock on the evening of January 5, 1913, he received a call from Edwardsville to go to that place with an automobile and from there take two young men and two young women to Bonner Springs to catch a train leaving Bonner Springs at nine forty-five. The distance between the two towns is about three miles. As the deceased with his passengers approached the bridge from the east on his return to Bonner Springs he was driving at the- rate of about twenty-five miles per hour. There was no moon, the wind was blowing, it was snowing a little, and the ground was covered with snow. He drove in a straight line along the north side of the road, missed the bridge except that the left rear wheel of the automobile struck the north girder of the bridge, and went over the embankment to his death.
The petition charged negligence in failing to pro vide a suitable and sufficient approach to the bridge and guard rails at the ends and sides to act as a warning to travelers nearing the bridge, particularly in the nighttime, indicate the location of the bridge, and enable travelers to see it so that they would not miss it and fce precipitated into the creek. The court instructed the jury that an approach is something connecting the bridge proper with the highway making the bridge accessible from the highway, and so sub-nftted the cause that the existence of an approach in this sense was material to the plaintiff’s cause of action. The defendant says the evidence shows that the moment a vehicle going east leaves the bridge it is upon natural ground which had been the roadbed for years before the bridge was erected. The jury returned the following findings of fact on this subject:
“Q. 1. Was there any filling made at any time at the east end of the bridge, except the back filling around the abutment? Answer. Yes.
“Q. 3. In about 1904 or 1905, when the bridge was moved to the east and stone abutments were put under it, was any approach built, or work, done on the road immediately east of the bridge, except back-filling around the abutment? Answer. Yes.
“Q. 5. Did the county build or construct any approach at the east end of this bridge? Answer. Yes.”
There was evidence sustaining the defendant’s view, but a number of witnesses who claimed to be familiar with the facts gave testimony supporting the findings of the jury.
Some confusion results from the use of the word “fill” by different witnesses. It fairly appears that when the bridge was reconstructed the surface of the ground east of the bridge was higher than the bridge and was graded down to the same level as the bridge, the earth removed being used to make a fill of considerable length at the west end of the bridge. There was clear evidence, however, that when the east abutment was constructed it was set some distance, the estimates vary from a few feet to several feet, from the east bank of the stream and the space between the abutment and the bank was filled in. This filling constituted an approach.
In the defendant’s reply brief it is said:
“The abutment was 8 or 10 feet wide at the bottom. The excavation therefor was necessarily some wider so as to leave room for placing the foundation stones. The abutment at the top was two feet wide. Consequently when the abutment was complete there had to be some filling in against the land side of the abutment.”
Accepting this statement as true, the filling constituted an approach.
In this case the existence of a very small approach is sufficient to satisfy the requirement of the instruction because the petition was interpreted too rigidly against the plaintiff. It is not necessary to quote the allegations of the petition. here, but they are open to the interpretation that guard rails as appurtenances to the bridge itself were necessary to make the bridge a proper structure, and whether or not an. artificial approach existed this bridge was defective for want of a wing guard at its northeast corner. The purpose of the bridge was to carry traffic brought up to it by the highway over the stream. It was so located and constructed, however, with respect to the stream and to the highway, that travelers using the highway with due care might miss the entrance and plunge over a dangerous declivity. Therefore the bridge itself was incomplete and defective in construction.
It is said there is no evidence which warranted the jury in finding that the chairman of the board of county commissioners had notice of the defect in the bridge for at least five days before the casualty, as the statute imposing liability on the county requires. The court instructed the jury as follows:
“If the jury believes from a preponderance of the evidence that James Kilmer was the Chairman of the Board of County Commissioners of Wyandotte County, Kansas, on January 5th, 1913, and at' the time of the death of Abbott, and while acting as the Chairman of said Board frequently visited said bridge prior to the death of Abbott, and passed over the bridge in controversy and saw the condition surrounding said approach (if you find there was constructed at the east end of said bridge an approach, as hereinbefore stated), and knew that there were no guard rails on the north side of the east approach of said bridge, and had personal knowledge of the conditions at said point, then you may find that the defendant had notice of the condition of said bridge. And if you further find from the evidence that the east approach (if you believe and find there was such an approach) was unsafe and dangerous to travelers by reason of the lack or failure to erect guard rails on the north side of said approach, then you may find that the defendant had notice that said bridge and its east approach was in a defective and unsafe condition.”
It is not claimed that this instruction misstates the law, but that the question of notice should not have been submitted to the jury at all.
The chairman of the board of county commissioners denied that he ever saw or knew of any dangerous condition at or near the bridge, and said his attention had never been called to conditions at the right of the east end of the bridge; he had never noticed or had knowledge of the conditions there, and in passing over the bridge he had never noticed the “jump off” or condition there. Notwithstanding these assertions the jury appear to have been satisfied he did know and had long known the facts.
The testimony of the chairman of the board of county commissioners shows these facts: He knew the road to Bonner Springs; he knew the location of the bridge; he knew a road called the Trent road, which came into the highway almost at the east approach of the bridge; he had known the bridge ever since it was constructed, or at least for twelve years; he had passed over the bridge frequently while chairman of the board and with other members of the board; he had looked at the bridge when he went over it; he knew the length of the bridge and the character of the east abutment, and he answered as to the height of the bridge above the water level; he disclosed intimate knowledge of the construction of the bridge proper with respect to guards and hub-rails; and he knew from looking at a photograph handed him at the trial, showing the bridge without guard rails on the east approach, that no change had been made in the bridge from what the photograph disclosed. These facts and admissions placed the witness in the attitude of knowing substantially everything about the bridge except its obvious defect. If he admitted knowledge of the absence of barriers, he admitted knowledge of the defect. When pressed concerning such knowledge he answered, “I don't remember of any” guard rails, and “I don’t recollect of any railing.” The subject of railings was, however, brought quite forcefully to the attention of the witness while he was a member of the board and within some months of the time he became chairman. An accident occurred on the west approach to the bridge, due to the absence of a railing, which resulted in injury to a woman. A claim for damages was presented to the board and afterwards suit was brought upon it. The board settled this claim after an inspection of the place where the accident occurred. To reach the west approach the commissioners went over the east approach, which had no railing, and across the bridge. The examination of the same witness reads :
“Q. You remember the case? A. I remember the case, yes.
“Q. A man named Smith, and his wife ? A. Yes.
“Q. You remember you went out there with the other members of the Board before that case was settled, to look it over ? A; Yes, sir.”
Yet, when asked if there were guard rails at the west end of the bridge his answer was, “I don’t remember of any.”
The court regards the evidence as ample to require the giving of the instruction quoted and to sustain the verdict so far as it includes a finding of notice.
It is argued that the deceased was guilty of contributory negligence as a matter of law, and special stress is placed upon the rate of speed at which the deceased was driving.
In answer to the question “At about what rate of speed was the auto being driven,” the jury answered, “Twenty-five miles per hour.” The testimony of survivors of the accident placed the rate of speed considerably lower, and both the plaintiff and the defendant regard the finding as not responsive to the evidence. The answer of the jury was not intended to be definite. The testimony of the witnesses merely estimated the rate of speed. Regarding the estimate as depressed by the witnesses, the jury merely raised it somewhat. Their answer responded to the indefinite question “At about what rate” and means simply, nearly or approximately twenty-five miles per hour.
The jury returned the following special-findings of fact:
“About how far did the headlights of the car light the road, in front of the automobile ? Answer. 50 feet.
“Within what distance could the car be stopped going-at the speed you find it was traveling? Answer. 50 feet.”
It is argued that the plaintiff should not have been driving so fast that the entire distance he could see was required for stopping the automobile. The deceased had no occasion to anticipate stopping. He was on the right-hand side of a broad highway and could see far enough to turn aside if confronted by visible' objects. If a barrier had been extended a few feet from the corner of the bridge he could have made the turn necessary to put him in line with the bridge and the road beyond without reducing speed at all.
Regarding the rate of speed at which the deceased was driving as something like twenty-five miles per hour, it is not conclusive upon the question of his prudence, and the jury returned the following special finding:
“Was Mr. Abbott driving the automobile at too high rate of speed on the night in question, considering all the facts and circumstances surrounding the occasion? Answer. No.”
It is not necessary to recite all the facts and circumstances here referred to. They included the essential elements of safe automobile driving generally, the character, ability, and skill of the deceased as an automobile driver, the character of the machine and its ability to perform, its state of repair and its equipment with respect to lights, brakes, steering gear, and other things, the mission which the deceased was executing, time and weather conditions, the character and condition of the road, the location of the bridge, its character and its surroundings, the familiarity of the deceased with the road and the bridge, and other matters the relation and effect of which made the question of contributory negligence one for the jury to determine.
The judgment of the district court is affirmed.
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'The opinion of the court was delivered by
Marshall, J.:
This is an action on an employer’s liability insurance policy. The plaintiff recovered judgment. The defendant appeals.
The defendant issued to the plaintiff a policy of liability insurance, by the terms of which it agreed to indemnify the plaintiff against loss, by reason of liability imposed on the plaintiff by law, for damages on account of injuries to any of its employees while engaged in the business described as “packing house, including handling of cattle and slaughtering,” and while engaged in the work of making ordinary repairs for the preservation of the machinery or buildings and the renewal of existing mechanical equipment, but excluding any injuries sustained in making additions to, alterations in, or the construction or demolition of any building, structure or plant, or by the installation of mechanical equipment in any building or part of building not previously occupied by the plaintiff, unless a permit to do such work was obtained from the insurance company.
For the purposes of this case, the material parts of the policy are as follows:
“V. This agreement shall apply to such injuries sustained by (a) any person or persons employed by the Assured whose entire compensation is included in the Declarations héreinafter contained and upon which the premium for this Policy is computed; . . .
“VI. This agreement shall apply to such injuries so sustained by reason of the business operations described in said Declarations and shall include the work of making ordinary repairs for the preservation of machinery or buildings and the renewal of existing mechanical equipment. Unless a permit describing the work to be undertaken, signed by an Officer of the Company, is hereto attached, this agreement shall not apply to such inj uries so sustained if caused by making additions to, alterations in, or the construction or demolition of any building, structure or plant, or by the installation of mechanical equipment in any building or part of building not previously occupied by the Assured.
“VII. This agreement shall apply only to such injuries so sustained while within the Factories, Shops or Yards defined in said Declarations or upon the premises or ways immediately adjoining. Drivers and their helpers, salesmen, collectors and messengers whose entire compensation is included in the compensation upon which Premium for this policy is computed shall also be covered hereby wherever they may be elsewhere in the service of the Assured in connection with the business operations described, but not while engaged in installations or mechanical demonstrations. . . .
DECLARATIONS.
“Item 5. The foregoing enumeration of employees includes all persons in the service of the Assured 'in connection with the operations herein described to whom compensation of any nature is paid or allowed, except the members of the Assured if a co-partnership, the President, Vice-President, Secretary or Treasurer of the Assured if a corporation, any drivers employed by the Assured who are enumerated in any concurrent Teams policy carried by the Assured with this Company or any person wholly engaged in clerical office duties. The foregoing estimates of wages and other compensation are offered for the purpose of computing the advance premium.
• “Item 11. No operations of any nature not herein disclosed are conducted by the Assured or any one else upon the premises covered hereby. . . .
“Item 12. The employees to be covered by this Policy do not make additions to, alterations in, or construct or demolish buildings, structures, or plant.” The Wolff Packing Company occupies a large tract of ground at the- foot of Quincy street in Topeka, Kan., extending from Monroe street on the east to Kansas avenue on the west, and from Crane street on the south to near the Kaw river on the north. The west line does not front entirely along Kansas avenue, but at the northwest corner of the tract, fifty feet does front on Kansas avenue. On the west side of the avenue, which is 130 feet wide, is the city park. Twenty-five feet within the park is the spot where Porter Harrison, an employee of the plaintiff, was injured.
On November 17, 1911, while this policy was in force, Harrison was required by his employer to go across the street from the packing plant, onto the premises of the city, west of Kansas avenue, to shovel dirt into a wagon, and while doing so was injured. The dirt was hauled by teamsters of the packing company onto its ground, which ground it had been for some years raising above the high-water mark set by the flood of 1903. Prior to the accident, the packing company had constructed a foundation for an ice house, and, in connection with the general grading up of the surface of the ground, part of the dirt was being thrown inside and around this foundation. The dirt was used partly to fill in around certain switch tracks, the position of which had been changed by the railroad company, and partly for the purpose of bringing the surface of the plaintiff’s ground above high-water mark. This filling up by the company was done for the preservation of its buildings.
Porter Harrison was one of those employees whose entire compensation was included in the amount upon which the premium on the policy was calculated. The packing company paid him $1200 as damages for his injury.
A demurrer to plaintiff’s evidence was overruled. The defendant did not introduce any evidence. Judgment was rendered for the plaintiff for $1200 and costs.
The defendant contends that there are two reasons why the plaintiff is not entitled to recover in this action: (1) Because the work in which Harrison was engaged when he received his injury was not such as contemplated in the schedule of operations, which was, “packing house, including handling cattle and slaughtering.” (2) Because the injuries were not sustained within the factories, shops or yards of the appellee or upon the premises or ways immediately adjoining.
1. Was the work in which Porter Harrison was engaged included within the terms of the policy? The policy included “the work of making ordinary repairs for the preservation of machinery or buildings, and the renewal of existing mechanical equipment.” It excluded work in “making additions to, alterations in, or the construction or demolition of any building, structure or plant, or . . . the installation of mechanical equipment in any building or part of building not previously occupied by the Assured.” This policy should be construed most strongly against the defendant and in favor of the plaintiff. (Insurance Co. v. Milling Co., 69 Kan. 114, 116, 76 Pac. 423; Accident Ins. Co. v. Crandal, 120 U. S. 527, 30 L. Ed. 740, 743; 1 Cooley’s Briefs on the Law of Insurance, 633; Loventhal v. Home Insurance Co., 112 Ala. 108, 20 South. 419, 57 Am. St. Rep. 17, 19, 33 L. R. A. 258, 260.)
Giving the policy a liberal construction, Porter Harrison was engaged in work for the preservation of the buildings, and was therefore within the terms of the policy, so far as the character of the work in which he was engaged is concerned.
2. The.defendant contends that Porter Harrison, at the time of his injury, did not come within the terms of the policy, because his injury was not sustained while within the factories, shops, or yards defined in the application for the policy, nor upon the premises or xoays immediately adjoining. Defendant claims that these operations were not included within the policy, as shown by article VII of the policy, and item 12 of the declarations, or application for the policy.
Was the place where the injury occurred upon the premises or ways immediately adjoining the factories, shops, and yards of the plaintiff’s packing house, within the meaning of the policy? The term “immediately” implies that nothing intervenes. The word “adjoining” ordinarily means joining to; contiguous; adjacent, as an adjacent room. (Webster.)-
The words “adjoining” and “adjacent” are often used synonymously, but not always. In City of Hutchinson v. Danley, 88 Kan. 437, 129 Pac. 163, this court held that “The ordinary meaning of the word ‘adjacent’ is close, lying near to but not actually touching.” (Syl. ¶ 1.) In The State, ex rel., v. Kansas City, 50 Kan. 508, 514, 31 Pac. 1100, and in Board of Education v. Jacobus, 83 Kan. 778, 112 Pac. 612, this meaning was given to the word in order to carry into effect statutory provisions which otherwise must have failed.
In 1 C. J. 1198, 'it is said:
“Adjoining. ... In its etymological sense the word means abutting; lying next to or in contact with; contiguous; in contact with; lying or being next to or in contact; meeting at some line or point of juncture; next to; touching or contiguous; as distinguished from lying near or adjacent.
“According to the more approved' definitions, the word carries with it the idea of actual contact and touch; but this is not necessarily the meaning of the w'ord in all connections.
“The word has been variously construed by the courts according to circumstances, as ‘along,’ ‘fronting,’ or in the sense of ‘adjacent,’ ‘near,’ or ‘nearest or most accessible.’ Thus when the word is used in statutes relating to arson, burglary, change of venue, eminent domain, or local assessments, its meaning must be gathered from ’ the context and the intention of the particular statute in which it is used. The meaning of the word in any given instance must be determined by the intention of the parties or statute, and by the situation of the property sought to be included or excluded from the meaning of the term.
“The question as to what amount of separation will or will not. deprive premises of the character of adjoining premises within the meaning of that term depends upon the circumstances of each particular case.”
“Adjoining” seems to be a more restricted or confined word than “adjacent.” If the word “adjoining” by itself had been used, there might be room for extending its meaning so as to include the park across the street. But when the word “immediately” is used, it shows a clear intention on the part of those writing the contract, that the contract should cover only those premises or ways that touch some part of the packinghouse yards. It is true that the city park is public property, and that the street is public property, but there is a difference between the two. The city owns the park much the same as a private corporation owns land. The public owns the street for use as a public highway. They are separate premises or tracts of land, one devoted to one purpose and the other to another purpose. It is stretching the terms of the contract too far to say that the park immediately adjoins the yards of the plaintiff, because the park immediately adjoins the street, and the street immediately adjoins those yards. This is the main question in the case. If the policy can not be construed to cover Harrison when he was working in the city park, then the plaintiff must fail. We can not so construe it without doing violence to the language of the policy. That language is the most restricted general language that can be used. The judgment is reversed.
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The opinion of the court was delivered by
MASON, J.:
J. D. Nickerson brought an action on account of injuries received through being struck by a street car. A demurrer to his evidence was sus tained, but the court, upon further consideration, set this ruling aside and granted a new trial. The defendant appeals, contending that the first decision was correct and the second erroneous.
It is not suggested that the plaintiff was denied a full opportunity to make a case, or that additional or different testimony would be produced at another trial. The question presented is purely one of law — Did the evidence, when given the most favorable consideration, tend to show a right of recovery?
The plaintiff was walking near to and approximately parallel with the track; as the car approached him the motorman rang the gong vigorously but did not attempt to stop; he stepped upon the track when the car was eight or ten feet away. It is obvious that if he was in full possession of his faculties he was himself guilty of negligence, and that the motorman was justified in supposing that he would hear and heed the gong and keep away from the track until the car had passed. If the plaintiff is entitled to recover it must be upon the theory that he was in such a mental condition that he did not realize his situation, and was-incapable of being warned, and that the circumstances were such as to apprise the motorman of the fact. Whether the evidence justifies these inferences is the question to be determined. There was' testimony tending to show these facts:
The street upon which the accident occurred runs-north and south. The plaintiff was struck by a northbound car. He left a place east of this street to walk to a place west of it. He reached the east side of the street two blocks and a half south of the point where he was injured. He at once crossed to the west side of the street and then walked a block north. From that time his memory of subsequent events is a blank until he found himself in a hospital. A witness saw him leave the place just indicated — the west side of the street a block and a half south of where he was injured — starting as if to cross the street again, walk ing in a northeasterly direction. This witness, who at the time of the collision was on the west side of the street, about forty feet away, testified that the plaintiff stepped in front of the car when it was eight or ten feet away, and was struck by its corner, indicating that just before the accident the plaintiff was on the west side of the track. Another witness testified that just before the gong sounded the plaintiff was on the east side of the track. So that according to this testimony he first crossed the street from east to west, then, after walking a block, started to recross it, but angled to the north, and before being struck had crossed the track from west to east and back again from east to west, and was struck while apparently undertaking to cross it again from west to east. He walked slowly (one witness said “just creeping along”), with his head down, and “seemed to be in deep study,” “looking straight down.” The gong sounded “long and loud”; “it rang and then ceased and then would ring again for a few strokes”; “then the next time he rung it continually.”
That the plaintiff does not remember what took place after he crossed to the west side of the street and walked a block north does not necessarily indicate that he became unconscious at that point, since his defect of memory may be due to his injury. But the unexplained fact that he then started to cross to the east side of the street, from which he had just come, his purpose being to reach a point west of it, supports the idea that he wras suffering some form of aberration. The witness who saw the car strike him seems to have been where he could see him at all times after he left the sidewalk on the west side of the street, and does not mention his crossing the track. It appears probable that the witness who spoke of seeing him on the east side of the track just before the gong sounded either meant to say that he was on the west side, or was mistaken as to his situation. But this is not a matter to be considered on a demurrer to the evidence.
If the plaintiff was in a condition that prevented his protecting himself, and the circumstances were such as to advise the motorman of this fact, a basis was afforded for holding the defendant liable. (Tempfer v. Street Railway Co., 89 Kan. 374, 131 Pac. 592.) The question for determination, therefore, stated in general terms, is whether a contention that a pedestrian who was run into by a street car was at the time unconscious, and that due diligence required the motorman to realize that fact and stop the car, is supported by evidence that he has no memory of what happened after he left a point a block and a half from where he was hurt until he found himself in a hospital, that when struck he was not going in the direction to which his errand would lead him, that he walked for some distance in the street close to the track, with his head bent down, giving no heed to the gong which was sounded loudly and continuously, and that shortly before the accident he crossed the track from one side to the other and back again, and was hit while apparently attempting to cross it for a third time.
The court is of the opinion that an affirmative answer is required, and the order is therefore affirmed.
Burch, J., and PORTER, J., dissenting.
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The opinion of the court was delivered by
'Mason, J.:
In January, 1906, W. R. Stubbs lent $3800 to- R. K. Moody, taking his note, due in six months, and bearing interest at six per cent, secured by a deed executed by Moody and his wife upon real estate owned by her and occupied as the family homestead. In August, 1910, Mrs. Moody brought an action to quiet her title to the property, on the ground that she stood in the attitude of a surety and that the lien had been released by the extension of the time of payment without her consent. She recovered a judgment, and the defendant appeals.
The question presented is whether the facts as found by the court require a judgment for the plaintiff or for the defendant. The note was several times renewed, and each renewal note contained a provision that after maturity it was to draw interest at ten per cent. There was therefore a valid extension of the time of payment, founded upon a sufficient consideration. This was without the knowledge of Mrs. Moody, who occupied the position of a surety, and therefore resulted in the release of her property, unless for some special reason to the contrary. (Hubbard v. Ogden, 22 Kan. 363; Note, 12 Ann. Cas. 550, 551; 32 Cyc. 195.) The defendant, however, maintains that the subsequent renewals did not discharge the lien, because they were made in pursuance of an agreement entered into between him and Moody at the time the note was given— an agreement which was binding upon Mrs, Moody, although she had no knowledge of it, because it was made in her behalf by her husband, whom she had clothed with apparent authority to arrange the terms upon which the deed should be used to secure her husband’s indebtedness. We regard this contention as well founded, and this view requires a judgment upholding the lien.
The original note was given for money lent by Stubbs to Moody to enable him to pay his contribution to a business venture which they were entering upon together for the construction of a part of a railroad on contract. “It was understood and agreed that Moody was not likely to be able to repay the $3800 until the contract was completed, and that it would be necessary for Stubbs to carry such indebtedness, or a substantial portion of it, to the end of the contract.” “It was agreed between Stubbs and Moody that Moody should execute to Stubbs his note for $3800, due six months after date, bearing six per cent interest, with the understanding that it should be renewed from time to time until the railroad contract was completed.” Stubbs testified that the security was taken in the form of a deed because it was thought a mortgage would necessarily involve changes in renewals of the note. He dealt entirely with Moody in the matter. Whatever may have been the understanding between Mrs. Moody and her husband as to the precise terms under which the deed to her property was to be used as security for his debt, when she entrusted him with the fully executed deed, she voluntarily placed him as her agent in such a situation that Stubbs was justified in supposing that he was authorized to deliver it in pursuance of the understanding-between himself and Moody, and this makes his action in the matter binding upon her. (Townsend v. Railway Co., 88 Kan. 260, 128 Pac. 389.) This rule has often been applied where a blank deed has been filled up and delivered by the person in whose hands it is placed, in violation of his instructions. (Guthrie v. Field, 85 Kan. 58, 116 Pac. 217, annotated in 37 L. R. A., n. s., 326.) The reasoning seems even more persuasive where a completed instrument entrusted to an agent is delivered to the grantee upon different terms from those authorized by the principal. As the note was given in pursuance of an arrangement that the time of payment should be extended, an arrangement which upon the grounds indicated must be regarded as binding upon Mrs. Moody, although made without her knowledge, the extension of time in pursuance of that understanding did not release her property.
The note was dated January 11, 1906. On January 15 Moody delivered the deed to an agent of Stubbs, accompanied by a written request reading:' “I leave for Omaha today and enclose deed for Mr. Stubbs. You write out something saying that this deed is to secure the payment of $3,800.00 note and when signed by Mr. Stubbs you can mail it to me.” In accordance with this request a writing was prepared, dated January 20, 1906, which was signed by Moody and Stubbs, reading as follows:
“I have this day deposited with W. R. Stubbs, warranty deed to Lot Two hundred and eleven (211) on Tennessee Street in the City of Lawrence, valued at Fifty five Hundred Dollars ($5500.00).
“This property is to secure the payment to W. R. Stubbs of promissory note dated January 11th, 1906, due July 11th, 1906, for the sum of thirty-eight hundred dollars ($3800.00).
“When said note is paid W. R. Stubbs agrees to return said note for thirty-eight hundred dollars ($3800.00) and to redeed back to me said Lot Two Hundred and Eleven (211) on Tennessee Street in the City of Lawrence.”
This is not inconsistent with the understanding that the note was to be extended. It is a mere memorandum evidencing that the deed, while absolute on its face, was intended as security. The statement that the property was to secure the note, and was to be reconveyed upon its payment, does not imply that the lien was designed to protect that particular instrument rather than the indebtedness which it evidenced. The mortgage — for that was what the transaction amounted to — ■ secured the debt, no matter what form it might take, so that it could be identified. (27 Cyc. 1075.) The several renewals of the note did not constitute its payment (30 Cyc. 1195, 1271; Note, 35 L. R. A., n. s., 1), no withstanding that as each note was given the old one was surrendered (Note, 35 L. R. A., n. s., 1, 99, bottom of first column and top of second). The original note was endorsed to a bank in which the payee was interested, as his contribution to a fund necessary to protect its credit, and the renewal'notes were made to the bank, which transferred the last one to Stubbs. This transfer of title does not in any way affect the question of payment. (Same Note, p. 86.)
The judgment is reversed and the cause remanded with directions to award Stubbs a lien on the property (in addition to that already allowed on account of the payment of taxes) for the amount of the loan and six per cent interest.
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The opinion of the court was delivered by
Dawson, J.:
On July 9, 1913, W. P. Knote of Douglass, Kan., brought an action in the city court of Wichita against the appellees to recover the sum of $111 alleged to be due him as evidenced by the following instrument in writing:
“$89. Douglass, Kansas, Apr. 21, 1910.
“On or before the 21 day of April, 1911, for value received in settlement, I, we, or either of us promise to pay to the order of W. P. Knote, Douglass, Kansas, with interest from date payable át W. P. Knote’s office, in Douglass, Kansas, with interest from date at the rate of 8 per cent annually until paid. The undersigned hereby waives all benefit of exemption laws of Kansas.
“For consideration mentioned above the undersigned hereby sells and conveys to W. P. Knote the following property, to wit: All our' personal property on condition, however, that if this note or mortgage shall be paid on or before the maturity thereof, then this mortgage to be void, otherwise in full force. And it is further agreed that in case of failure to pay the amount due hereon at maturity or whenever W. P. Knote may deem himself insecure, then he may take said property wherever found by virtue of this mortgage, and sell same at private or public sale as by law provided; the proceeds of said sale after deducting all expenses, to be applied to this note and mortgage, and any balance then unpaid shall be a valid and subsisting claim against the maker hereof. Chas. Bense,
Eunice Bense.”
The appellees admitted the execution and delivery of the no.te, but denied that they were indebted to the appellant and alleged that it had been paid and satisfied. They further answered that prior to the date of the note they were indebted to appellant on a certain promissory note for $118.40, which was secured by. a chattel mortgage covering certain buggies, harnesses, farming machinery and live stock; that certain payments had been made upon said note, and that there was a balance of $89 due the appellant on April 21, 1910, on which date it was agreed between the parties that the appellees were to turn over to appellant a wagon, buggy and certain harness in full satisfaction of such balance of indebtedness. On April 21, 1910, the note for $118.40 was canceled and delivered to appellees, and at the same time they executed to appellant the instrument above; but they allege it was executed as a memorandum of the balance due appellant and that it was agreed that it should be returned to them upon the delivery of the wagon, buggy and harness. In May of that year the appellees delivered the buggy, and about the same time the appellant called at ap-pellees’ home and took away the wagon and harness.
From an adverse judgment in the city court the case was appealed to the district court, and on a jury trial the appellees again, prevailed.
Only one of the assignments of error is worthy of attention, but it is serious. Appellant complains that the trial court erred in permitting appellees to prove by oral testimony that the note was not to be paid in cash but was to be paid by the delivery of certain property. An inspection of the note fairly shows, though not very accurately, that it was to be paid in cash. The mortgage recitals are also rather crude, but they fairly appear to pledge all the appellees’ personal property to the payment of the note. Whether the instrument is in .need of parol testimony to explain any indefiniteness or not, it was error to permit testimony to alter its positive terms. And it appears that this error runs throughout the case, not only in the admission of testimony, but by inference at least it crept into the instructions. This is at variance with Drake v. Dodsworth, 4 Kan. 159, and an unbroken line of decisions of this court down to Thisler v. Mackey, 65 Kan. 464, 70 Pac. 334, and Van Fossan v. Gibbs, 91 Kan. 866, 139 Pac. 174, and we are reluctantly constrained to reverse and remand this case for further proceedings.
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The opinion of the court was delivered by
Johnston, C. J.:
Edward Browning was prosecuted upon an information containing twelve counts charging him with not properly caring for live stock owned by him. Four of the counts alleged cruelty to his live stock during the months of October, November and December, 1913, and January, 1914, respectively, by confining them in a dark, damp and unclean place; four counts alleged failure to provide food, drink and shelter, and the four remaining counts failure to provide sustenance, during the same months respectively. The information did not set out the specific days of each month on which the alleged offenses were com mitted, and defendant’s motions that the information be made more definite and certain in this respect and for the state to elect the particular counts upon which it would prosecute were overruled. The court instructed the jury that the four sustenance counts were duplicative and that they should, therefore, be disregarded. The jury found defendant guilty of cruelty in keeping the animals in an unclean and unfit place on one count, and of the failure to supply food, drink and shelter upon three others. Defendant’s motion for a new trial was overruled, and he appeals.
The motion of the defendant to require an election by the state upon what particular transactions it would rely for a conviction on each of the offenses charged against him should have been sustained. The information, as we have seen, contained twelve counts charging what purported to be twelve distinct offenses. Upon a ruling made when the court instructed the jury four of the counts were eliminated on the ground that the acts alleged to have been done by defendant were included in four other counts of the information. That left four counts, each charging that the defendant had cruelly treated his animals at different times during the period of four months by allowing the bank-barn, where they were kept and confined, to become unclean and unsanitary, 'it was charged that at some unnamed day in each month this cruelty was practiced. The defendant had asked the court to require the state to make the charge more definite as to time and to point out more clearly the transaction in each count, but the request was denied. The defendant was required to meet these charges without any information as to what particular transactions the prosecutor had in mind or upon which convictions were sought, and he was not even informed of the days, weeks or other periods of time in which the different acts of cruelty were supposed to have occurred. There was the same indefiniteness as to the four separate charges against defendant for failure to feed, water and shelter his animals. The information alleged that once in each month from October to January, inclusive, he had committed this offense, but no day of the month was named and no transaction was pointed out by the prosecution, and the defendant therefore had no means of knowing what particular act or shortcoming was intended to be covered by any of the counts.
The testimony was equally indefinite as to times and transactions. Many witnesses testified as to the condition of the barn and also as to the food and care given the animals and their condition. The evidence of these witnesses related to a time extending from October first to the first of the following February, but most of them were unable to fix, with any certainty, the times to which they referred and some could not even give the month of the occurrence. The defendant was therefore blindly fighting charges of twelve distinct offenses without any opportunity of knowing the transaction that was intended to be covered by any one of the charges until the instructions were given to the jury, when the court withdrew four of them. After that the defendant undertook to meet charges of eight distinct offenses which the court submitted to the jury, and he still was without means of knowing what particular act of omission or commission was relied on for a conviction on any one of the eight counts. He was convicted on one of the counts which charged him with inflicting unnecessary cruelty on animals by keeping them in damp, unsanitary places. In behalf of the state it is said that at least one conviction of this class can be sustained as there is sufficient evidence that the place in which they were kept was unclean and unfit for the animals. However, a 'continuing offense was not charged nor relied on. It is not a question whether or not testimony enough was obtained from one and another of the witnesses to support a single conviction, but it is, rather, whether he was given a fair trial of the charge on which the conviction was'obtained. Who can tell on what particular act or omission the conviction rests or how many of the j urors agreed that the barn was in an unclean and unsanitary condition at any one of the times about which testimony was given? Fifteen witnesses testified in regard to the condition of the barn at the different times that they observed it during the fall and winter. Some stated that they found large accumulations of manure which were from a foot to fifteen inches in depth at the rear of stalls and that it was damp. Others said they found six inches of manure in some "of the stalls at the time they observed the barn. Still others said they found from three to four inches of manure, and that it was dry. Some witnesses testified that the barn was fairly clean and sanitary when they were present, and others that part of it had been cleaned out but that there was manure in one or more of the stalls. There was testimony, too, that it was in the average condition of barns in the community. The testimony tending to support the charge was quite meager and related to different times, but, assuming that portions of it tended to support a conviction, it can not be told how many jurors agreed on any one of the times or periods about which there was testimony.
The same is true as to the charges of cruelty in failing to provide sufficient food, water and shelter for the animals. Many witnesses testified on the subject and spoke of what they had seen. There was little specific proof of any particular dereliction or which related to a failure to care for the animals at any particular times or periods. Most of them related to the condition of the horses when witnesses happened to observe them, that is, the horses were poor in flesh and some of them were weak and a few had died. However, there was testimony to the effect that a part of the horses were in good condition but that a disease had attacked many of them with the result that some died and those that recovered were necessarily poor and weak for a time. There were convictions on three of the counts charging cruelty of this kind, but the jury must have been entirely at sea so' far as the identity of acts or omissions of defendant were concerned and so far as basing any one of the convictions on any particular transaction or omission. It has been determined that where testimony is introduced tending to prove several distinct offenses under a particular count it is the duty of the court, upon application of the defendant, to require the prosecutor to elect upon which transaction he will rely for a conviction. The application of this rule was peculiarly important in this case, and because of the nature of the charges and the character of the evidence the denial of the right was a great disadvantage to the defendant. As was said in The State v. Crimmins, 31 Kan. 376, 2 Pac. 574:
“Any other rule would often work injustice and hardship to the defendant. If any other rule were adopted, the defendant might be charged with the commission of one offense, tried for fifty, compelled to make defense to all, be found guilty of an offense for which he had made no preparation and had scarcely thought of, and found guilty of an offense which was really not intended to be charged against him; and in the end, when found guilty, he might not have the slightest idea as to which of the offenses he was found guilty. Also, if evidence was introduced tending to prove twelve or more different offenses, the jury might find him guilty without any two of the jurors agreeing that he was guilty of any particular one of such offenses. One juror might believe that he was guilty of one offense, another juror of another, and so on with respect to all the jurors and all the offenses, each juror believing that the defendant was guilty of some one of the offenses which the evidence possibly tended to prove, but no two jurors agreeing that he was guilty of the same identical offense.” (p. 379.)
(See, also, The State v. Schweiter, 27 Kan. 499; The State v. O’Connell, 31 Kan. 383, 2 Pac. 579; The State v. Guettler, 34 Kan. 582, 9 Pac. 200; The State v. Lund, 49 Kan. 209, 30 Pac. 518; The State v. Lund, 49 Kan. 663, 31 Pac. 309; The State v. Tanner, 50 Kan. 365, 31 Pac. 1096; The State v. Gaunts, 60 Kan. 660, 57 Pac. 503.)
As the case was tried it was possible for the jurors to have looked over the wide range of indefinite testimony and each have selected as a basis of his judgment for a conviction an act or time which differed from that selected by any other juror, and so while a verdict was agreed upon by the jury it may have been that no two of the jurors founded his judgment of conviction on the same offense.
The judgment will be reversed and the cause remanded for a new trial.
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The opinion of the court.was delivered by
West, J.:
These two cases involve the validity of a marriage, a will and a conveyance. In No. 19,220, the plaintiffs, the children of Charles Nordmark, sought to have the will of their father set aside on the ground of undue influence and lack of testamentary capacity. They alleged among other things that for many years prior to his death at the age of eighty-seven their father was feeble of health and unsound of mind, and that the will was made at the instance of his second wife, Sarah Bertha, and that she went through the form of a marriage to the testator in 1906, at a time when he was incapable of entering into a valid contract of marriage. The will gave the estate to the wife, and appointed her executrix, after giving one dollar to each of the plaintiffs. The court decided in favor of the defendant, and made findings of fact to the effect that the first wife died about 1904, and that the testator was legally married to Sarah Bertha Johnson September 5, 1906, and lived with her as his wife to the time of his death, J une 26, 1912, and that when he executed his will on the 8th day of June, 1912, he was of sound mind and memory and capable of executing a valid will and under no restraint or influence, and that the making of the will was his free act and deed. As a matter of law it was concluded that the will was regularly and legally made and executed and admitted to probate.
The plaintiffs complain principally of the trial court’s refusal to find the material facts as requested by them, and of its refusal properly to place the burden of proof to show lack of undue influence. The plaintiffs requested twenty-five findings of fact and suggested thirteen others, all of which were refused. The first list consisted largely of questions touching dates and details of the history of the testator and his family up to the time of his second marriage, his conduct towards his children, his health and the conduct of his second wife, and alleged delusion and undue influence. The suggested findings bore especially upon the testator’s prejudice against his children in his last years, his mental condition, and the relations between his children and the second wife and the influence of the latter over him, and his prejudice, delusion and mental capacity. It is claimed that had the proper findings been made in accordance with the facts shown by the testimony the plaintiffs would then be in condition to demonstrate that the wrong legal conclusion was reached. It would seem at first blush that as findings on the matters suggested probably would not have changed the trial court’s view of the ultimate facts their refuseal could not be said to have worked material prejudice to the plaintiffs. But the real question is whether or not the complaining party has been denied a statutory right the refusal of which was error.
The civil code requires that all mere technical errors and irregularities be disregarded when they do not appear to have prejudicially affected the substantial rights of the party complaining, “where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court.” (Civ. Code, § 581. See, also, Civ. Code, § 141; Saunders v. Railway Co., 86 Kan. 56, 119 Pac. 552.) The code provides for a special verdict, and has done so since 1859. (Compiled Laws, 1862, ch. 26, §§ 286, 287.) The provision then embodied in section 287, that the j ury in certain actions might at their discretion render a general or special verdict, remained until 1870, when by section 7 of chapter 87 of the Laws of that year, original section 287, then section 286 of the civil code (Gen. Stat. 1868, ch. 80, § 286), was amended so as to take away this discretion from the jury, and providing that in all cases the court, at the request of parties or either of them, should “direct the jury to find a special verdict, in writing, upon all or any of the issues in the case; and upon like request to instruct the j ury, if they shall render a general verdict, to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon: The special verdict or finding must be filed with the clerk and entered in the journal.” This was repealed by section 1 of chapter 91 of the Laws of 1874, and in its stead it was. enacted that “In all cases the jury shall render a general verdict, and the court shall in any case at the request of the parties thereto, or either of them, in addition to the general verdict, direct the j ury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same.” Section 286 of the code of 1859 was still left untouched, and its exact wording is now found in section 294 of the civil' code of 1909, and together with the amendment of 1874 forms the whole of such section save the provision that the special findings control the general verdict when inconsistent therewith. Hence, while the old-style special verdict by which the jury voluntarily found the facts only and returned no general verdict has not been permitted since 1870, the code still recognizes and defines a special verdict, although always requiring a general verdict also.
In 2 Thompson on Trials, 2d ed., it is said:
“Such a finding of facts is in the nature of a special verdict, and is interpreted and its sufficiency is determined by the same rules. Accordingly, it is laid down that the judge must find facts, and not the mere evidence of facts, and that his finding must not leave a part of the facts to be presumed, but must state all the facts which are deemed material, so that the court will have.nothing to do but declare the' law upon the same.” (§ 2658.)
In National Bank v. Peck, 8 Kan. 660, the court, speaking through Mr. Justice Brewer concerning a complaint that the special verdict there involved did not state all the facts established by the evidence, said:
“What is a special verdict? ... A special ver- diet, on the other hand, finds only facts, and leaves to the court the duty both of determining the law and of applying it to the facts. . . . But what facts? How minutely may they, must they, be subdivided? The facts stated in the pleadings; as minutely, and no more so, in the special verdict, than in the petition, answer, and reply. The special verdict must conform to the pleadings. The word ‘facts’ is used in this section in the same sense, and refers to the same things, as when used in section 87 of the code, which declares that a ‘petition must contain a statement of the facts constituting the cause of action in ordinary and concise language, without repetition.’ There are in every cause of action certain essential, substantive facts, certain elements, so to speak. Every pleader knows this when he prepares a petition. The omission of any one of these elements renders the petition defective. The failure to prove one defeats the cause of action. Now these essential elemental facts are the ones the special verdict must find, no more, no less. A history of the case in the nature of a recital of the testimony, or'a detail of the various steps in the transaction is not the function of a special verdict. It responds to the various facts of the petition like a special denial, touching each separately.” (pp. 665, 666.)
In McCandliss v. Kelsey, 16 Kan. 557, it was held that when a case is tried by the.court without a jury and special findings are demanded it is generally the duty of the court to find upon all of the issuable facts, but that this does not require a finding upon matters set forth which are really foreign to the controversy; that an omission to find upon all of the issuable facts will not always compel a reversal, but if the facts which are found compel the judgment which is rendered, regardless of the others not passed upon, the omission is not prejudicial error. In the opinion the writer of the opinion just referred to, speaking for the court, said:
“The case was tried by the court without a jury, and special findings were demanded. In such a case, is it the duty of the court to find specifically upon all the matters put in issue by the allegations in the petition and denials in the answer? and will a failure to discharge this duty compel in all cases a reversal ? It may be stated, as a general proposition, that it is the duty of the court to find upon all the issues in the case. . . . It is enough, if the court has found upon all the facts put in issue by the pleadings, material to the controversy.” (p. 558.)
It was further said when there is some pivotal fact on which the case turns the failure to find on some other matter does not necessarily amount to material error. The example given is a finding that in an action on a note for goods sold and delivered full payment had been made before the action was begun. In Briggs v. Eggan, 17 Kan. 589, it appeared that the defendant had in a formal manner presented seventeen conclusions of fact which were wholly refused by the trial court, and this was held to be substantial error, and it was said:
“Of course, the court is not bound to make special findings concerning immaterial facts; nor is the court . bound to find the material facts in any greater detail than is really necessary for the correct decision, by a higher court, of the questions of law involved in the case.” (p. 591.)
In Schuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264, it was held that “Upon the trial of a question of fact by the district court, it is its duty, upon request, to find the material facts established by the evidence, so that exceptions may be taken to its views of the law involved in the trial. Error in this respect will not be presumed, but must be affirmatively shown.” (Syl. ¶ 2.) That was an action to recover real property with damages for its detention. The trial court made special findings of fact, nineteen in number, covering various moves, offers, dealings, occupations, deaths, conveyances, failure to demand recognition of title, recognition of ownership, rental value, ownership, and the making of certain improvements. Mr. Justice Burch, in the opinion, pointed out a number of things which the findings did not show but which the plaintiff’s counsel assumed, and after discussing the conclusiveness of the findings made said:
“When the district court was requested to make find ings of fact it was its duty to find the material facts established by the evidence, so that exceptions might be taken to its views of the law involved in the trial.” (p. 700.)
It was pointed out, however, that no motion for modification or to include additional findings was made. It was finally said:
“The findings respond to the issues, cover every fact essential to recovery by the plaintiffs, are all sustained by sufficient competent evidence, and are in harmony with the apparent weight of the evidence. The conclusions of law are legitimate deductions from the facts found and the judgment follows as a necessary and inevitable consequence.” (p. 705.)
In Vickers v. Buck, 70 Kan. 584, 79 Pac. 160, the rule was laid down that when findings of fact are requested “it is error for the court to refuse the request, or to refuse to make such separate findings so definite that the party may have a fair opportunity to except to the decision of the court upon the conclusions of law involved in the trial.” (Syl. ¶ 2.) It was again held, in Harper v. Harper, 83 Kan. 761, 113 Pac. 300, that:
“If the findings and conclusions are clearly stated, so that the conclusions reached by the court can be readily understood, as well as the facts, upon which they are founded, this will be sufficient.” (p. 772.)
There the complaint was that the findings of fact and conclusions of law were not made separately, as requested, and that the facts found required a judgment different from the one rendered. That, too, was a suit to set aside a will on the grounds of mental incapacity and the undue influence of the principal legatee. But the court made thirty-seven findings detailing the amount of property owned by the testator, the fact of his childlessness, where and with whom he lived, his sickness, his health of body and mind just prior to his death, his preparation of a memorandum of his will, the drawing of certain deeds, his consultation with an attorney, the dictation of the will, its deposit in a tin box in a bank vault, the failure to disclose the value of the property covered by the residuary clause, the testator’s business ventures with the principal legatee, statements made by the latter about the testator and his property, his conduct upon hearing of his death, his expression of surprise that a will had been made, the possession of the will, the appointment and conduct of the principal legatee as executor, and numerous other matters and things, followed by the finding of mental capacity and freedom from undue influence. It was not strange, therefore, that this court said:
“We think the findings and conclusions in this case are sufficient, and are unable to say that they are erroneous in any particular.” (p. 772.)'
Doubtless they were unnecessarily minute and detailed, but had they embraced nothing but the age, marriage, death, heirs, mental capacity and freedom from undue influence, a different question would have arisen. In Norris v. Jackson, 76 U. S. 125, Mr. Justice Miller had under consideration a provision of the act of March 3,1865, reading as follows:
“The finding of the court upon the facts, which finding shall be general or special, shall have the same effect as the verdict of a jury. . . . When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.” (13 U. S. Stat. at Large, ch. 86, § 4, p. 501.)
In the opinion it was said:
“This special finding has often been considered and described by this court. It is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest.” (p. 127.)
In Anglo-American Land, M. & A. Co. v. Lombard, 132 Fed. 721, 68 C. C. A. 89, the circuit court of appeals of the eighth circuit declared that a special find ing of fact should be equivalent to a special verdict of a jury “and should cover all the issues, so that in.the event of proceedings in error, if the €rial court’s conclusions of law are deemed incorrect, and if the proceedings are otherwise without error, the appellate court may, under section 701, Eevised Statutes, direct such judgment as the special finding requires. . . . To meet the requirements of the statute, as defined in the decisions of the supreme court and of the several circuit courts of appeals, a special finding should be a clear and concise statement of the ultimate facts, and not a statement, report, or recapitulation of evidence from which such facts may be found or inferred. The ultimate facts must be so stated that, without inferences, or comparisons, or balancing testimony, or weighing evidence, the case may be determined by the application of pertinent rules of law. If any ultimate fact material to the issues is to be inferred from the whole evidence, or from other facts proved or admitted, the inference must be drawn by the trial court, and the fact must be stated in the findings. Like the special verdict of a jury, a special finding can present only questions of law.” (pp. 733, 734.) In Cointe v. Congregation of St. John the Baptist, 154 Wis. 405, 143 N. W. 180, it was held that facts required to be found are the ultimate, not merely the evidentiary facts.
“The ultimate facts which should be so stated are, generally speaking, the issuable facts which a pleading should contain. They are the facts upon which the plaintiff’s right of recovery or the defendant’s right to defeat a recovery necessarily depends.
“The statement of an ultimate fact frequently includes a legal conclusion from the evidentiary facts.” (Syl. ¶¶2, 3.) .
The action was to recover for a well drilled on the defendant’s land, and it was denied that any contract had been made, either expressly or by ratification or estoppel. In an extended opinion the trial court gave a history of the affair leading up to the controversy and concluded that the plaintiff had shown no contract binding on the defendant and that he was not entitled to recover. It does not appear that any request was made for findings, that any were submitted, or that any fault was found with those prepared from the extended opinion referred to, which were practically a repetition thereof. The conclusions were affirmed, but in the opinion it was pointed out by Chief Justice Winslow that the difference between ultimate and evidentiary facts may be illustrated thus: In a personal injury action the evidence may tend to show that the place where the plaintiff worked was dark; the floor was rough or insecure; there was a concealed trap door with insufficient hinges or a rotten barrier; that these facts are evidentiary. The ultimate fact is that the employee was furnished an unsafe place to work, and if such action were tried by the court the findings of fact should not contain a recitation of what this witness or that witness testified to, “but should contain a finding of the ultimate facts, namely, that the place was an unsafe place to work, by reason of the fact that it was dark, or the floor rough, or otherwise.” (p. 417.) At page 418 it was said:
“The ultimate facts which a finding should contain are, generally speaking, the issuable facts which a pleading should contain (sec. 2646, Stats.), and practically the same as the facts which a special verdict should contain (secs. 2857, 2858, Stats.) ... In the present case two or three typewritten pages would have sufficed to ‘state the ultimate facts fully and completely, whereas ten printed pages have been so used.”
The chief justice also pointed out what he regarded as the ultimate facts on which the pivotal question of liability rested, and said:
“So in the present case the ultimate facts in issue were few and simple, namely: (1) Did the board of directors of the defendant corporation, either by majority vote or by unanimous vote of all, contract with the plaintiff for the construction of the well? (2) If not, had the corporation, by the course of its business in the past, held out to the public that the pastor and bishop were its agents in the transaction of business, and authorized to make contracts of this nature on its behalf? (3) If not, then had the corporation accepted and made such beneficial use of the well that it has ratified the unauthorized acts of its officers in causing it to be dug? The answers to these questions are the final inferences of fact which are to be drawn from and are the logical result of the subordinate or merely evi-dentiary facts.” (p. 417.)
In a Note in 24 L. R. A., n. s., beginning at page 1 and ending at page 79, the subject of special verdicts, including the difference between facts and evidence and between evidentiary and ultimate facts, is exhaustively covered. Practically the uniform import of the multitudinous decisions cited is to the effect already indicated touching special findings when made by the court. Over and over again it is held that such findings are to include such facts embraced within the issues as give rise to legal conclusions. The most common expression is the one used by this court so frequently, “material, issuable facts.” By turning to the petition in No. 19,220 it will be seen that the plaintiffs alleged the following among other facts: That at the time and for many years before the will was executed, Charles Nordmark was of unsound mind; that he was about eighty-seven years of age, very feeble of health; that he did not himself sign the will; that his name was not signed thereto by another person in his presence and by his express direction; that whatever he did touching the making and execution of the will was at the special instance of the defendant; that it was a direct result of her fraud .and duress and undue influence; that since the marriage they had resided together alone in Scandia;.that she obtained his full confidence; that she had charge of his business affairs; that by false representations she prejudiced him against his children and induced him to believe that they cared nothing for him but only desired his property; that she alone cared for him and would look after his welfare; that these false represen tations were made by her for the purpose of getting control of the property; that she would not permit the plaintiffs to visit their father; that she falsely led him to believe that they did not want to see him but intentionally remained away; that she gained such control over his mind and will that he would do whatever she dictated; that at the time of the execution of the will he was on his deathbed, and was extremely weak, both in body and mind.
Of course in one sense of the word these are not ultimate facts. In the extreme sense, the ultimate fact was his condition of mind, but these weré the material issuable facts which the plaintiffs pleaded, which the defendant denied, and on which evidence was introduced.
The court was given to understand by a long list of requested findings and by another list of suggested findings that the plaintiffs desired to invoke their statutory right to have the material issuable facts on which evidence had been introduced found by the court, not merely the two general facts as to sanity of the testator and the matter of undue influence. The pivotal, determinative facts often are and must be based on the materiál issuable facts.
Very many of the requested and suggested findings were such and in such form that the court properly refused them, but this in no wise relieved it of the statutory duty to make such findings as under the issues and the evidence the plaintiffs were entitled to. (A. T. & S. F. Rld. Co. v. Ferry, 28 Kan. 686, 689; Vickers v. Buck. 70 Kan. 584, 586, 79 Pac. 160.) After the refusal of all the requested and suggested findings and the return of those made by the court, the plaintiffs in their motion for a new trial complained of error in refusing and making findings, and on the same day moved the court to set aside those made and to make new ones and to modify those made “for the reasons, among others, that the findings of fact as heretofore made by this court and filed November 11, 1913, do not cover all the material facts established by the evidence in this action.” Had the findings contemplated by the statute been made, then the plaintiffs could have presented them as a basis for their contention that the conclusions of law were not sustained thereby, and, as shown by various authorities already quoted, it is precisely for this purpose that this statutory right is given. As was said in A. T. & S. F. Rld. Co. v. Ferry, 28 Kan. 686:
“The facts set forth and alleged in one pleading and denied by another, or considered denied (as is the case with reference to facts set forth and alleged in the reply), are the facts with reference to which the court should make its findings or conclusions of fact. These ■ facts are often called the issuable facts, and the court should make special findings or conclusions with reference to them whenever either party so requests.” (p. 689.)
In the instance cited by the supreme court of Wisconsin, the one conclusive fact was as to the matter of a safe place to work, but that one final fact was reached by the consideration of the material issuable facts upon which evidence had been introduced touching the presence or absence of light, the condition of the floor, the presence or absence of a trap door therein, and the question whether such trap door had sufficient hinges or a rotten barrier. Whether these be called ultimate facts or what Blackstone called “naked facts” or what some courts call “essential facts” (Note, 24 L. R. A., n. s., 25) or “inferential facts” or “probative facts” (p. 26) or “substantive facts” (p. 26) they may be said to be those material issuable facts covered by the pleadings and by the evidence, which go to make up the basis of the rights claimed by the one or both of the parties.
While it can not be said either that the decree rendered was improper or that the findings on the matters suggested would have led the court to a different conclusion, it can and must be said that the plaintiffs were denied a right, which denial amounts to error and deprives the plaintiffs of the advantage of a trial con ducted in accordance with the letter and spirit of the statute.
Certain other complaints have been examined and found to be not well founded.
There is no occasion to retry the cause, however, because the court has heard all the evidence and has carefully considered it.
The decreé in No. 19,220 is therefore reversed and the cause remanded with directions to make findings of fact as suggested herein and to take such further necessary steps as may be in accordance herewith.
No. 19,219 involves the validity of the testator’s second marriage, and, as frankly stated by counsel in his brief, “If the will is upheld and no error is found in the trial of that case, and this court affirms the trial court in all particulars therein, then all the other issues of these two cases are disposed of.” This, is necessarily true, for, as the counsel also suggests, even if the transfers should be set aside and the property returned to the estate it would pass under the will to the defendant.
We have examined the findings requested and those made and the conclusions of law, and the latter so far as the validity of the marriage is concerned are approved, and the corresponding portion of the decree is affirmed.
The decree as to the transfer of the property is reversed and the cause is remanded for further proceedings based upon the evidence already heard, in accordance herewith.
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The opinion of the court was delivered by
Porter, J.:
The defendants appeal from a judgment in plaintiff’s favor for personal injuries caused by their alleged negligence.
The' plaintiff was in the employ of the transfer company and was directed by them to assist in unloading from one of their wagons a number of marble slabs in front of a building in process of erection. This is the second time the case has been before this court; the first time it was reversed on account of inconsistent special findings. (Willis v. Skinner, 89 Kan. 145, 130 Pac. 673.)
The plaintiff was directed by the foreman to get into the wagon and assist another man to put out the marble slabs to other men, who carried them into the building. The petition alleged that the injuries were caused wholly by the negligence of the defendants in failing to provide him with a reasonably safe place to work, and by their failure to keep in the wagon a suf- ■ ficient force of men to handle the marble, and by ordering the plaintiff to place something under the end of one of the slabs about to be removed, and that while he was in the act of doing this, several of the pieces of marble fell upon him and seriously injured him.
Upon the second trial the plaintiff testified that when he first reached the wagon there were several men at work unloading the slabs; that two men, Jennings ■ and Clark, were in the wagon adjusting the slabs so that the men on the ground could get hold of them and pull them out; that after he had assisted in carrying one or two of the slabs into the building, he was directed by Gayhart, the foreman, to get into the wagon and assist in getting the slabs out, and that he took Clark’s place in the wagon; that there were four or five of the slabs standing on edge leaning against one side of the wagon box; that when he assisted in push-> ing out the first one, Gayhart, the foreman, complained that he had allowed one of them to scrape over the iron edge of the box, and a piece of the marble was broken off, and that Gayhart gave him a piece of stick and said:
. “When you pull the next one out, raise it up and put this piece under it so it won’t scratch on that iron.”
The other men had gone into the building with a slab when he told him this; that he pulled one of the slabs out about four inches and picked it up and tried to put the stick under, and that while engaged in doing this the slabs fell over upon him and injured him. He testified that Gayhart was not there at the time the slabs fell over; that Jennings was standing at the rear end of the slabs, and that.it was Jennings’ duty to push the slabs out while he guided them, and that he did not know what Jennings was doing; that he did not look around to see, and that he did not speak to Jennings and inform him that he was going to lift the slabs. Jennings testified that he was not holding the slabs at the time the accident occurred, and from all the evidence he did not know that the plaintiff was going to lift them. The plaintiff testified that it did not occur to him to wait until the other, eight or ten men came out of the building to help him before lifting the slab. He was asked if there was any occasion to put the piece under the slab to keep it from scraping until the others came to take it out of the wagon. His answer was: “I don’t know about that.” It appears from the evidence that the slabs stood in the wagon about six inches from the end where they were to be taken out, and that they rested on cross-sticks which raised them slightly above the bed.
The court overruled a demurrer to the plaintiff’s evidence and denied a motion .for judgment on the special findings and for a new trial.
The jury found that the defendants’ negligence consisted in “instructing the plaintiff to place a stick of wood under the slab, leaving one man to hold up the other slabs.” They found that the plaintiff did not notify Jennings that he was about to put a piece of wood under the slabs or call upon him to assist in so doing.
The court correctly charged the jury that no negligence was to be presumed from the mere fact that the slabs fell. (Mo. P. Rly. Co. v. Haley, Adm’r, &c., 25 Kan. 35; Smelting Co. v. Allen, 64 Kan. 70, 67 Pac. 436; Lane v. Railway Co., 64 Kan. 755, 68 Pac. 626; Byland v. Powder Co., 93 Kan. 288, 295, 144 Pac. 251.)
The burden rested upon the plaintiff to show that the defendants were guilty of some negligence. In our opinion the judgment can not be sustained. Finding No. 7, that there was anything to prevent Jennings from holding the slabs, and finding No. 9, that he could not by the exercise of ordinary diligence have prevented them from falling, are not only in direct conflict with the testimony offered by the plaintiff, but are contrary to the undisputed physical facts. The plaintiff says that he could have held the slabs in position if he had nothing else to do. Jennings himself testified that he had no difficulty in holding them. Counsel attempt to explain these special findings by the statement that:
“The attention and energies of Jennings were required in the work of pushing the slab endwise out of the wagon. His work was of such a nature that it was impossible for him to have given much time or effort to supporting the slabs. The most, strenuous and important part of his work was to push the slabs endwise out of the wagon. To do this it was necessary for him to get to the end of the slab, and use all his force to push it out. Since all his strength was required to push the slab endwise, it would not be possible for him, at the same time, to keep all the slabs from falling sidewise. In view of these conditions, and the evidence'produced at the trial upon this point, it is not strange that the jury found that he could not have prevented the slabs from falling, even though he had exercised ordinary care.”
But Jennings was not strenuously engaged at that time in doing anything. The other men had not returned from the building, and there was no occasion to move any slabs until they- came. He was apparently standing in the wagon doing nothing, waiting until the other workmen returned. Moreover, Gayhart had not directed the plaintiff to raise the piece at once, but, as plaintiff testified, Gayhart’s order was: “When you pull the next one out, raise it up and put this piece under it so it won’t scratch on that iron.”
Plaintiff contends that Gayhart was guilty not only of negligence, but gross negligence, in giving the order. We fail to see how the giving of such a simple order can be regarded as negligence of any character. The slabs were leaning against the sides of the wagon within six inches of the end of the wagon bed; they were resting upon crosspieces, and all that was necessary to prevent the next slab from chipping upon the iron strip was to place the stick near the end of the wagon bed, and when the other workmen returned, slide the slab over it. If plaintiff intended to raise the slab and at the same time place the piece under it, he should have told Jennings and had Jennings hold up the slab while he was so employed. It required no special experience for him to know that the slabs would fall if they were not supported in some manner. In the brief counsel say that he was a farmer, who, though in the employ of defendants for a year, had worked for the most part at assisting in unloading grain from cars, and that he had never before assisted in unloading marble slabs. He had, however, assisted ih carrying into the building some of the slabs and he knew their weight. The fact that they were marble instead of iron or some other heavy material can furnish no excuse for his not knowing what every man knows of the laws of gravitation. The argument that because the plaintiff was a farmer he was not expected to know anything, does not appeal to men who have had experience at farm work. If a farmer were to give the same kind of directions to a hired man assisting another person in the unloading of a wagon, no one would have the hardihood to claim that the farmer was guilty of actionable negligence in case the hired man was injured in the same way that the plaintiff was injured. Having failed to .show any negligence on the part of the defendants, the plaintiff failed to establish a cause of action entitling him to recover.
The judgment will be reversed and the cause remanded with directions to render judgment for the defendants.
Johnston, C. J., and Mason, J., dissenting.
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Per Curiam:
It appearing that no one has been authorized to prosecute an appeal from the judgment rendered in this action, and further that the party against whom the judgment was rendered does not desire to prosecute the appeal that was taken, it will be dismissed.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued the defendant for damages resulting from personal injuries suffered on account of the negligence of the defendant. The plaintiff recovered, and the defendant appeals.
The plaintiff was a helper in the defendant’s manufacturing establishment. He was directed to assist in shortening a sheet-metal hood or covering for a conveyor. To do this it was necessary to cut some rivets. The hood lay on a wooden platform constructed of light material which did not afford room to "do the work, which gave the plaintiff insufficient opportunity to protect himself from the hazards of the work, and which did not furnish a sufficiently solid foundation upon which to rest the hood while the rivets were being cut. It was suggested to the defendant’s, foreman that the hood be taken to the shop, where the work could have been done according to proper methods, but the foreman said, “they were covered up in the shop/’ and that the work should be done on the platform. By direction of the foreman the plaintiff applied to the person in charge of the defendant’s storeroom for a sledge and a cold hammer, received them, repaired to the platform, and together with an associate undertook to perform the service required. He had no experience in doing work of that kind. For a time the plaintiff’s associate held the cold hammer while the plaintiff struck it with the sledge. They then changed tools, and the plaintiff held the cold hammer. While so engaged, upon a stroke of the sledge a sliver of steel penetrated the plaintiff’s eye. The plaintiff’s associate immediately examined the cold hammer and the sledge. The sledge was in fairly good condition, but the head of the cold hammer was battered and scaled and had “little edges over the edge of the head.” Some time after the injury the sliver was extracted from the plaintiff’s eye by the use of a magnet, and it was produced at the trial. Cold hammers are made of tempered steel, and there was evidence that the sliver taken from the plaintiff’s eye was a fragment of tempered steel.
The court submitted to the jury charges of negligence respecting the safety of the place where the plaintiff was required to work, the safety of the tools given him, and the safety of the methods by which the plaintiff was directed to do the work. With the general verdict the jury returned the following special findings of fact:
“Q. No. 1. If you find the defendant was negligent, then in what respect was it negligent? A. No. 1. They were negligent in not furnishing proper instruments to inexperienced workmen.
“Q. No. 2. Was the platform on which plaintiff was working the cause of the injury to plaintiff ? A. No. 2. Indirectly by not being the proper place to do this kind of work.
“Q. No. 3. Was the use of the cold cut hammer and the sledge hammer the cause of the injury to plaintiff? A. No. 3. Yes, by the cold cut not being in proper condition.
“Q. No. 4. Was the use of the cold cut hammer and the sledge hammer proper tools to use in the work being done by the plaintiff ? A. No. 4. Yes.”
The defendant argues that the verdict was based on conjecture because the injury might have been produced by a glancing blow of the sledge which might scale a good cold hammer or sledge; the sliver which penetrated the plaintiff’s eye might have come from the sledge or from the cutting edge of the cold hammer; and the sliver might have come from the material which the plaintiff was cutting. The argument rests upon conjecture, not the verdict. There was no evidence that the blow which occasioned the injury was a glancing blow. The head of the sledge was in fairly good condition, but the head of the cold hammer was in the very condition which would likely cause fragments of steel to fly when struck by the sledge. The cold hammer was examined at once by a person looking for the cause of the plaintiff’s injury and nothing about the cutting edge of it attracted his attention sufficiently to cause him to speak of it. There was no evidence on which to rest an inference that a chip or sliver of metal came from a rivet or from the hood. The testimony was that if the cold hammer bounded out of the gash made in a rivet by strokes of the sledge the plaintiff always tried to put the hammer back in the same gash. If this were not done and the hammer were set in a new place it was supposable that a piece of metal might be chipped off, but there was no testimony that these were conditions of the blow which caused the injury. The result is that all causes of the inj’ury except the one assigned in the findings of fact are eliminated either by the proof or for lack of proof, while under the proof the cause assigned in the findings is natural, reasonable, and adequate. Consequently it may legitimately be inferred that the cause assigned for the injury was the true one. Indeed the inference accords so fully with the laws of logic, the methods of scientific inquiry, and the ordinary operations of the rational faculty that it is quite irresistible. (Railroad Co. v. Perry, 65 Kan. 792, 794, 70 Pac. 876.)
It is said that the tool was a simple, common tool, which the defendant was not bound to inspect, that the plaintiff must have been as fully aware of its condition as the defendant, and that he was bound to know that particles of steel are likely to fly when a tempered tool like the cold hammer is struck with great force by a heavy sledge. The court has had before it several cases of this general character, and the present one is governed by the decisions in the cases of Steele v. Railway Co., 87 Kan. 431, 124 Pac. 169, and Railway Co. v. Quinlan, 77 Kan. 126, 93 Pac. 632. The opinion in the Steele case distinguishes the cases of Railway Co. v. Weikal, 73 Kan. 763, 84 Pac. 720, and Gillaspie v. Ironworks Co., 76 Kan. 70, 90 Pac. 760, relied on by the defendant, and that function need not be performed again.
The subjects of the safety of the place where the plaintiff was obliged to work, the method which he was required to pursue in doing the work, and some others are given much attention in the defendant’s brief. They are no longer of consequence because the verdict rests on the defective condition of the cold hammer. True, the jury, in answer to special question number four, stated that the platform indirectly contributed to plaintiff’s injury. The finding responded to evidence tending to show that the place was not a proper one in which to do the work, that if the work had been done in a proper place the danger from chipped pieces of metal would have been minimized, and that the plaintiff might have been able to take a position which would have protected him from pieces of metal flying from any source. The jury, however, following closely the instruction relating to proximate cause, classified the place where the work was done with the indirect antecedents of the injury and stated the proximate cause in findings number one and number three.- This discrimination on the part of the jury was distinctly favorable to the defendant.
It is suggested, but not argued, that the court did not instruct the jury on the subjects of contributory negligence and assumption of risk. No instructions on those subjects were requested, and the absence of such instructions was not included among the grounds of the motion for a new trial. Therefore it will be assumed that the defendant rested upon its defense of unavoidable accident.
It is pointed out that in one place in the instructions the court said it would be the duty of the master to know whether or not the place was reasonably safe before ordering his servant to work there, and it is said an absolute duty was thus imposed upon the defendant instead of the qualified duty which the law contemplates. But the court immediately proceeded to say that the defendant was not an insurer, and was only bound to exercise reasonable and ordinary care to furnish the plaintiff a reasonably safe place in which to work.
There are other space-filling criticisms of the instructions which will not be noticed here.
The plaintiff was injured on October 29, 1912, and at that time was earning $1.76 a day. At the time of the trial, which occurred a year later, he was twenty-three years old. The piece of steel penetrated his left eye. The tissues healed over the foreign body and it was necessary to cut them in order to extract it. Afterwards the eye itself was removed. During this time the plaintiff’s right eye was sympathetically inflamed, and the injured eye was removed in order to save it. The plaintiff testified that the sight of the right eye was not as good as it formerly was. ’ While this evidence was somewhat meager, it was sufficient to authorize the court to submit to the jury the plaintiff’s claim for damages for permanent injury to the right eye. What, if anything, the jury allowed for this item of damages, can not be known; but inasmuch, as the total recovery did not exceed what might have been allowed for loss of time, for expenses, for pain, and for loss of the injured eye, the defendant has no> reason to complain.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by M. A. Hutterer against John K. Byler to quiet the title to a quarter section of land in Finney county. Byler answered, and upon his application R. S. Cone, F. M. Johnson and George W. Finnup were made parties defendant. With his answer he filed a cross-petition alleging ownership of the land in himself and that the land had been formerly owned by R. W. Mitchell, but that as Mitchell had failed to pay the taxes on the land it was legally sold for taxes and a tax deed issued in 1899 to C.T. Vinson. Subsequently Vinson conveyed the land to the Vinson Land Company which on September 1, 1900, obtained a judgment in the district court quieting its title to the land as against Mitchell, and later, through a regular chain of conveyances, the property ■ was deeded to Byler. He further alleged that although Mitchell had no title or interest in the land he executed a deed to the same to M. A. Hutterer on May 10, 1907, who well knew that a complete title to the land was vested in Byler; that Hutterer, Cone and Johnson conceived and carried out a plan to bring an auction and obtain a judgment by default against Byler, who was a nonresident of the state, counting on the- probability that constructive notice of the action would not reach him, and that upon the rendition of the judgment they would convey the land to an innocent purchaser. It was also alleged that notice of the proceeding was not brought to Byler, that a fraudulent judgment in favor of Hutterer was obtained and the plan carried out by a conveyance of the land to one who transferred it to F. M. Johnson, who in turn sold it to George W. Finnup, who it appears was an innocent purchaser and acquired a valid title to the property. Byler asked to have his title quieted against all of the parties named, ■and he also asked for judgment against Hutterer, Cone and Johnson for the value of the land in case it should be found that Finnup had innocently purchased the land and acquired a valid title thereto. On a trial the court found generally for Blyer as against Hutterer, and also found generally in favor of R. S. Cone. It was specifically found that prior to May 29, 1909, Byler had a good title to the land and that Hutterer had no interest in it, that the judgment rendered quieting the title to the land in him had been made the basis for the conveyance of the land to Finnup by which a valid title was vested in Finnup, and that therefore Hutterer became liable to Byler for the value of the land at the time of the conveyance, which was found to be $1200, and for, that amount judgment was rendered against Hutterer. It was further found that the evidence did not establish a liability against Cone, and judgment was given in his favor. Byler appeals, and his main contention is that judgment should have been rendered against Cone as well as Hutterer.
Hutterer having no interest in the Byler land and having procured it to be transferred beyond the reach of its owner became liable for its value. Byler held under a tax deed only, but the title had been cured and confirmed by a judgment, the result of which left no interest in the holder of the patent title. Hutterer procured a deed to the land, and employed Mr. Rader, an attorney of Kansas City, to help him secure it on the basis that Rader would pay the costs of the litigation and in case he was successful should receive one-half of the tract. The attorney wrote to Cone, sending him an abstract of title and stating that if he was not the representative of any of the other parties in interest, to make an examination of the title, and if he thought there was a chance of success to institute an action to recover the land or to quiet the title thereto, and that if they were successful Cone would receive one-half of the compensation received by Rader. Cone made some investigation of the matter and then informed Rader that he thought there was a defect in the tax title, and he also spoke of an abortive action that had been begun to quiet the title to the land as against Mitchell, but it seems that the subsequent one, which was effectual was not brought to his attention. He agreed to help Rader, and subsequently the suit suggested by Rader was commenced. No transfer of the land or any part of it to Cone was attempted or made, and the agreement of Rader to give him a share of the land if they succeeded in recovering it was not an enforceable one. Cone was employed as an attorney by Hutterer’s attorney and accepted the employment, his compensation to depend on the contingency of success in the proposed litigation.
It is contended, however, that Cone knew that Mitchell had no title to the land when the conveyance to Hutterer was made, that he fraudulently joined with Hutterer in the wrong which deprived Byler of his land, and therefore he too was liable for the value of the land. Whether he knew the condition of the title or joined in the fraudulent scheme with Hutterer which would make him liable was a question of fact for the trial court. As to' Cone’s knowledge of the title, it appears that the abstract presented to him when he was employed did not show the judgment that had been rendered confirming Byler’s title under the tax deed. There was oral testimony to the effect that he did not actually learn of that action until after the judgment had been entered and the conveyance of the land executed. Until the contrary is shown he is deemed to have acted in good faith. He- knew, of course, of the tax deed, but the validity of such deeds is frequently contested in good faith, and whether this one was regular and valid appears to have been questioned; at least the holder seemed to think a judgment quieting his title against Mitchell, the holder of the patent title, was necessary to its completeness. It is true there is testimony and correspondence which tends to support the claim of the appellant, but, on the other hand, there is oral testimony explaining the letters, and some which tends to show that Cone acted in good faith as an attorney of the plaintiff in the case; and the question being one of fact depending on conflicting evidence, the decision of the trial court that Cone was not guilty of fraud which would render him liable must be taken as the final determination of the question.
The judgment of the district court is affirmed.
Mason, J., not sitting.
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The opinion of the court was delivered by
West, J.:
This is in form an action in ejectment to recover title and possession of a two-hundred-and-forty-acre tract of land in Greenwood county. . The defendant in his answer denies the allegations of the petition and admits his possession.of the real estate. Beneath the surface of these pleadings the real issue is the validity of a conveyance from the plaintiff, Emelia New, to E. C. Schultz, the wife of James Schultz, formerly an attorney at Eureka, and a conveyance by E. C. Schultz and husband to the defendant, J. A. Smith, the claim of the plaintiff being that her deed was procured by the fraud of James Schultz, and that J. A. Smith took with knowledge or with notice of sufficient facts to have put him upon inquiry leading to knowledge of such fraudulent transaction. When the case was r.eached for trial the defendant’s counsel, in his statement to the jury, said, among other things, that.his client,.Smith, took his deed in good faith, having paid good money for it, and went into possession, and afterwards made improvements and paid the taxes; that he paid off the three mortgages upon the land out of his own funds; whereupon the plaintiff moved that the defendant be required to elect whether he would rely upon his claim of title or upon his claim of being a mortgagee in possession, and being required so to do the defendant under protest elected to stand, upon the former. At a subsequent trial the court ruled that he was bound by his previous election. The jury returned a verdict in favor of the plaintiff, and from the judgment thereon the defendant appeals, and assigns many alleged errors touching rulings upon the admission of evidence in giving and refusing instructions, in requiring the defendant to elect, and in refusing to consider his rights as a mortgagee in possession. Upon the last trial the plaintiff was called as a witness and asked if after she was brought to Eureka under arrest for the murder of her former husband she saw James Schultz, and upon objection was forbidden to state what conversation she had with him. One of the plaintiff’s counsel testified that before the former trial Mrs. New’s testimony was taken, and that on that trial Mr. Schultz was present in the court room and appeared as one of the attorneys in the case; that Mr. Smith, the defendant, was also present at that time; that Mr. Schultz was not sworn- and. did not testify on that trial. Then the counsel offered a transcript of this testimony in which the witness stated that she saw Mr. Schultz the day she was brought to Eureka under arrest; that he came to visit her and said a few words; that after she was taken to the jail at Wichita Mr. Schultz visited her there about three times, during one of which visits she signed a paper, which he said was to protect her property, but she did not know at the time what the paper was; that he called Mary Williams in the hall to come in and sign the paper. There was a tall slender man there. Mr. Schultz then said, “You signed this paper, Mrs;. New?” to which she answered, “Yes.” That she at no time made an agreement with him that he was to have her farm if he would defend her in the criminal case or had any agreement as to what she was to pay him for his services. When this transcript was offered in evidence Mr. Schultz was no longer alive, and the defendant contends that it was error tó adffiit this testimony, and that under the statute which provides that the transcript of the stenographer’s notes may be introduced in evidence under like circumstances and with like effect as the deposition of the witness, Mrs. New, being present in court could not have testified by deposition, and that it was not competent because in respect to a transaction had personally with a deceased person prohibited by section 320 of the code as amended by chapter 229 of the Laws of 1911.
The defendant offered in evidence the record of all mortgages that were on the real estate when deeded to Mrs. Schultz and to the defendant; also assignments, releases and forclosure proceedings concerning them, and offered to show that such mortgages were paid by the defendant. These were excluded from consideration on the theory that he was bound by his former election to stand on his claim of title.
It is earnestly contended by the defendant that he not only had a right to have this evidence received and considered, but that his payment of the mortgages with his own money gave him the right to be subrogated to that extent and to be treated as a mortgagee in pos-sesion. To this the plaintiff replies that having pro-i cured thé land by fraud, or rather that having taken it with notice of the fraud by which Schultz procured it to be conveyed to his wife, the defendant is barred from consideration as a mortgagee in possession.
The matter of election must be determined by the rightfulness of the order requiring it in the first place, for it was then made under complusion and protest, and hence the defendant could not be held bound by it on a subsequent trial on the mere ground that having once elected he must stand by such election. The very word signifies a free choice,- and an election by compulsion is an anomaly. (3 Words & Fhrases, p. 2336.) An election which involves no freedom of choice is known as Hobson’s choice, which is defined as “A choice without an alternative.” (Webster’s New International Dictionary, 1911 ed.) It must follow, therefore, that an involuntary election in obedience to the order of the court was not such a choice as would bind the party on a subsequent trial unless for the sole reason that it was rightfully ordered at the first trial. But when one defends an action for the recovery of land on the grounds that he has a paper title which he desires held good, and is also in possession of mortgages on such land which he has paid, we can see nothing necessarily irreconcilable about the two defenses. It is proper in an action for specific performance to plead in the alternative and ask for damages for nonperformance. (Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576; Naugle v. Nangle, 89 Kan. 622, 132 Pac. 164.) And it.is quite possible for one to purchase incumbered land,, the title to which may be uncertain, and by purchasing the in-cumbrance hold both as owner and mortgagee, the matter of merger usually being one of choice and not one of compulsion. (Loan Association v. Insurance Co., 74 Kan. 272, 86 Pac. 142; Carson v. Fulbright, 80 Kan. 624, 103 Pac. 139; Williams v. Bricker, 83 Kan. 53, 58, 59, 109 Pac. 998; Zuege v. Mortgage Co., 92 Kan. 272, 140 Pac. 855.)
As to the admissibility of the transcript of the evidence, aside from the competency of the witness,..it should be observed that when this testimony was originally offered Mr. Schultz was present as one of the attorneys in the case, although he did not testify. Mrs. New had then testified about her interviews with Mr. Schultz at one of which she had signed and acknowledged a paper which turned out to be a deed, and about other transactions with him when he acted as her attorney. This was followed by a cross-examination by her counsel, covering in detail her dealings with Mr. Schultz after his motion that her examination in chief be stricken out was overruled. It is contended that the only basis for admitting this transcript is the statute providing that a transcript of the court stenographer’s notes of one’s testimony, properly verified and certified, may be introduced under like circumstances and with like effect as the deposition of such witness. (Gen. Stat. 1909, § 2407.) The circumstances under which depositions may be used are set forth in sections 337 and 358 of the civil code, an essential one being that the witness is not and can not be in attendance. The witness was present and placed on the stand, but an objection to testimony by her was sustained, and plaintiffs’ counsel argue that having been deprived of her evidence by this objection it was proper to introduce the transcript of her former testimony. The objection was on the ground of the incompetency of the evidence and also the incompetency of the witness to testify concerning a transaction with a deceased person, and it does not appear on which ground it was sustained. The fact that the transcript was received indicates, however, that it was on the ground of the present incompetency of the witness. Of course, aside from this the transcript was properly received like evidence of any other statement made by the plaintiff in the presence and hearing of Mr. Schultz and undenied by him. Fullenwider v. Ewing, 30 Kan. 15, 1 Pac. 300, is cited. There on the second trial of a case a deposition taken on a former trial was offered as the affidavit of a witness, and it was held that this was properly rejected, the witness being present in court. It was also held proper to prove certain conduct and language on the part of the original plaintiff had in the presence of the original defendant. See, also, C. K. & W. Rld. Co. v. Prouty, 55 Kan. 503, 40 Pac. 909, to the effect that it is-error to admit the deposition of a witness who resides outside the county, but who is present in court and ready and willing to testify.
Before the enactment of section 2407 it had been held that the stenographer’s notes of evidence formerly-taken could be read in evidence, and the statute makes it proper to introduce the transcript made and certified by him. In The State v. Stewart, 85 Kan. 404, 116 Pac. 489, the testimony of a witness voluntarily given in the preliminary examination of the charge for which the accused was on trial was held admissible, the accused having originally had full opportunity to cross-examine, and the direct testimony of the witness having become unavailable by reason of his claiming his statutory privilege of withholding the same. The previous decisions were referred to and followed. It was said that this admissibility did not depend so much on the presence or the availability of the witness as on the availability of the testimony; that the testimony of Stewart, the husband of the defendant, was as unavailable as if he were over the state line. The case of Pratt v. Patterson, 81 Pa. St. 114, was cited, in which both parties to an action having testified and the verdict having been set aside and one of the parties having died and his executor having been substituted, it was held competent at the next trial to read the testimony given by the deceased at the former trial. Section 337 of the code provides that the deposition of a witness may be used only when he is a nonresident or absent from the county or unable to attend court or dead. Section 2407 has reference not so much to the matter of using a deposition in the absence of witnesses as using a transcript of the stenographer’s notes instead of reading them, and while it provides that such transcript may be introduced under like circumstances and with like effect as a deposition, it does not restrict such use to instances in which depositions only may be used. In other words, the object of section 2407 is not to confine transcripts to the limits applied to depositions, but to provide a more convenient way to use testimony formerly taken than by reading the notes which would be unintelligible to the jury, and which reading might m many cases be tedious and unsatisfactory.
The question remains whether or not this testimony was incompetent because it related to a transaction had by the plaintiff with a deceased person “where either (formerly the “adverse” party) party to the action claims to have acquired title directly or indirectly from such deceased person.” (Laws 1911, ch. 229, § 1.) The defendant claimed'to have acquired title from the wife of the deceased, but as the husband joined in the deed he could well claim to have acquired title either directly or indirectly from him. When this testimony was originally given it did not relate to any transaction or communication had with a person then deceased and hence it was not barred by the statute invoked by the defendant. At the subsequent trial the testimony by the witness was excluded by reason of this statute, and then it became as unavailable as if Mrs. New had been absent in another state or helpless on a bed of sickness, the situation thus approaching very nearly the one presented in The State v. Steiuart, supra, so nearly, indeed, that the same rule must be held to apply. Authorities are cited which would lead to a different conclusion and which go to the extent of holding that Mrs. New should be deemed to have been actually testifying when her former testimony was read, but we are not persuaded or convinced by their reasoning. In Collins v. McGuire, 76 App. Div. 443, 78 N. Y. Supp. 527, it was held by the appellate division of the supreme court of New York that the competency of a witness depends upon the facts as they exist when his testimony is given. A defendant had testified on his own behalf to personal transactions had with the plaintiff, who died before being called as a witness, and his administrator was substituted and it was sought to strike out the evidence under a statute similar to ours, but the motion was denied and this ruling was affirmed, following Comins v. Hetfield, 80 N. Y. 261. It is suggested that when this evidence was originally given it was with the understanding that Mr. Schultz should be allowed to testify concerning the same matters, but as a demurrer was sustained to the plaintiff’s evidence the opportunity did not arise in that trial; and that the objection that it covered a conversation between attorney and client was waived in view of the understanding. But this can not mend matters for the defendant for the statute does not preclude the client but only the attorney from giving such conversation. (Civ. Code, § 821, subdiv. 4.)
It is insisted that the court erred in sustaining an objection to questions in substance whether or not the defendant when he bought the land believed that the plaintiff had in good faith parted with all her interest in it. It was competent to show his motive, belief and state of mind, and no one could know so well as he what they were. (Baker v. Railway Co., 85 Kan. 268, 116 Pac. 816.) But he was permitted to testify that he did not then know there was any claim made by Mrs. New of fraud or failure of consideration, and that he had never heard anything about any controversy as to how Schultz got the deed. No offer was made to show what was indicated by these questions and no affidavit or showing thereof was produced in support of the motion for a new trial, and it can not be said that material prejudice appears as to the ruling-in question. (Clark v. Morris, 88 Kan. 752, 129 Pac. 1195; Caldwell v. Modern Woodmen, 89 Kan. 11, 130 Pac. 642; Cheek v. Railway Co., 89 Kan. 247, 131 Pac.. 617; McIntosh v. Oil Co., 89 Kan. 289, 131 Pac. 151; Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268; Leavens v. Hoover, 93 Kan. 661.
We have examined the instructions given and refused with reference to the complaints made concerning them and to ascertain whether the jury were properly charged, and while now and then an expression might-have been bettered or properly omitted, it appears that the issues were fairly and sufficiently presented and no material error was committed either in those refused or in those given. The only remaining point requiring consideration is the rightfulness of the defendant’s claim to be treated as a mortgagee in possession. This term is a familiar one, but it bears no talismanie charm or potency to confer benefits regardless of the dictates of fairness and equity; on the contrary, it is an expression used to describe a situation in which those very dictates demand that one be made whole for what he has benefited an estate before being required to yield it up to another who would thereby enjoy an unearned advantage. When Mrs. Schultz took her deed to the land it was incumbered, and these incumbrances remained when Mr. Smith purchased the land. They represented money loaned to a former owner and never paid by such owner, so that the utmost title Mrs. New could ever rightfully claim is the equity or the fee burdened with these incumbrances. These Mr. Smith has paid, not on account of or at the behest of the plaintiff, but presumably because they had to be paid to save the land, which he claimed to own. Is there any reason why if he should be compelled to turn the land over to Mrs. New he should also present her with the amount of these mortgages ? The only possible reason assigned is that he is tainted with the fraud by which the title was procured from her. But this is not an action for punitive damages. It is one to set aside a deed, and regain possession of land on which he has expended, under color and claim of title, enough money to clear such title from all the incumbrances which his adversary voluntarily placed upon the land. He is- not the actor in this drama, but the party assailed, and if his assailant recovers everything which he ever procured from her directly or indirectly it would seem enough. And to this effect are the authorities. In Hofman v. Demple, 52 Kan. 756, 35 Pac. 803, the defendant had furnished liquor to make the husband of the plaintiff drunk for the purpose of inducing him to convey the homestead, whereupon the husband pro cured the wife’s signature by duress, and it was held that the plaintiff had no right to recover the land freed from an incumbrance cleared by the defendant. True, the grantors had acquiesced for more than a year and a half, but this was not deemed sufficient to bar the recovery of the land, and it was stated to be inequitable that more should be recovered. In Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610, many decisions were reviewed, and it was said that whatever may be the historical source of the rule, it should be acted upon except where one'has acquired possession of property “under such circumstances that it would be inequitable to permit him to assert a right under it.” (p. 145.) In Walters v. Chance, 73 Kan. 680, 685, 85 Pac. 779, it was said'that if one obtain possession by force, intimidation, deceit or fraud, a court of equity will not permit him to profit thereby. Here there is no claim that the defendant obtained possession by fraud committed by him upon Mrs. New — only that he took his title with the knowledge or means of knowledge that one of his grantors had defrauded her. While this may be good ground for requiring him to give up what he obtained and to lose all he paid for it, no reason is apparent why in addition he should lose what he had paid out to clear the land from liens placed thereon by the plaintiff. Of course it is not and can not be claimed that the defendant is a mortgagee in possession — only that he should be treated as if he were. More correctly stated, the question is, Should he be subrogated to the rights of thé creditors whose liens he satisfied? As said in Olson v. Peterson, 88 Kan. 350, 128 Pac. 191: “ ‘Subrogation is a creature of equity, invented to prevent a failure of justice’ ” (p. 361) and it was there said to be broad enough to include “ ‘every instance in which one party is required to pay a debt for which another is primarily answerable, and which, in equity and good conscience, ought to be discharged by the latter.’ ” (p. 361.) The doctrine of subrogation or equitable assignment was considered in Deposit Co. v. City of Stafford, 93 Kan. 539, 144 Pac. 852. (See, also, Young & Co. v. Ward et al., 115 Ill. 264, 3 N. E. 512; and Arnold v. Hoschildt, 69 Minn. 101, 71 N. W. 829.) As a matter of simple fairness and in line with the essential principles of e'quity we hold that the defendant should not be ousted until made whole for the incumbrances which he has satisfied.
Litigation resulting from the homicide of Joseph New is no new thing in this court. (Dobbs v. The State, 62 Kan. 108, 61 Pac. 408; Smith v. Becker, 62 Kan. 541, 64 Pac. 70; Dobbs v. The State, 63 Kan. 321, 65 Pac. 658; New v. Smith, 68 Kan. 807, 74 Pac. 610; New v. Smith, 73 Kan. 174, 84 Pac. 1030; New v. Smith, 86 Kan. 1, 119 Pac. 380.)
In order that this litigation may be ended, and in view of the circumstances shown, the amount due the defendant on account of the mortgages paid by him should be ascertained and satisfied before the plaintiff is let into possession. If there is a claim for rents, and profits there is no reason why proper pleadings-and proceedings can not be filed and had to close the entire controversy.
Finding no material error except in the one respect indicated, the case is remanded with directions to modify the judgment in accordance herewith.
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The opinion of the court was delivered by
Brewer, J.:
Counsel for plaintiff in error present two questions for the consideration of this court. They insist that the district court erred in that it did not find specifically upon all the issues presented by the pleadings, and that therefore they are entitled to a reversal; and second, that one finding which was made, and which was of vital importance, was not direct, definite and positive. Of these in their order.
, The case was tried by the court without a jury, and special findings were demanded. In such a case, is it the duty of the court to find specifically upon all the matters put in issue by the allegations in the petition and denials in the answer? and will a failure to discharge this duty compel in all cases a reversal ? It may be stated as a general proposition, that it is the duty of the court to find upon all the issues in the case. But because a matter is stated in the petition, and denied in the answer, it does not necessarily follow that this allegation and denial present one of the issues in the case. It may be a matter wholly foreign to the case, something which the court would be compelled upon motion to strike out as impertinent or irrelevant. And because the defendant has not seen fit by motion to shape hi's adversary’s pleading into technical accuracy, it does not follow that a larger burden is cast upon the court in the weighing of testimony and the finding of facts. It is enough, if the court has found upon all the facts put in issue by the pleadings, material to the controversy. Again, there may be some pivotal fact upon which the case turns. If the court finds upon that, ignoring all else, while it may be, strictly, an omission, an error, on the part of the court, yet it may also be an error without prejudice. If for instance, to a petition setting forth in different counts various causes of action, as, on a note, for goods sold and delivered, money had and received, work and labor done, etc., an answer is filed containing a general denial, and a plea of payment, and on the trial the court should find generally that all the claims of plaintiff upon the defendant had been fully paid and discharged before the commencement of the action, and this finding should appear to be supported by the evidence, how would the plaintiff be prejudiced by the court’s failing to find specifically as to the several causes of action alleged in the petition and denied in the answer? What matter whether each count stated a cause of action which in fact did once exist, if before suit all had been paid? Or again, suppose a plaintiff sues as administrator, alleging the death of the decedent and his own appointment as administrator, and then alleges several causes of action in favor of the estate, and this petition is met by a verified denial; and upon the trial the court should find that plaintiff was not the administrator of the decedent, and that no letters of administration or other authority had ever been issued to him by any court: how would he be prejudiced by a failure to find as to the existence of the various causes of action in favor of the estate? These are illustrations, but they serve to show that, not every omission of the court to find specifically upon all the matters stated in one pleading and denied in the other, or even upon all the strictly issuable facts, is sufficient for reversal. Indeed, it would seem that before a reversal should be ordered, it should appear not merely that the court had failed to find upon all the issuable facts, but that a finding one way or the other as to some of those not found would have compelled a judgment different from that entered upon those found. If the facts found, and by the evidence rightfully found, compel the judgment that is rendered, no matter'what may be the truth concerning the issues not passed upon by the court in its findings, and whichever way they might be found, then it would be but an idle and useless ceremony to remand the case for findings which when found would only result in the same judgment. Nor does this infringe upon the rights of either party. It is doubtless true, as counsel claim, that a party has his theory as to the legal effect of the facts in the case, and so shapes his pleadings accordingly; and the district court may have a very different judgment as to such legal effect, and may make its findings accordingly. But still the party is not without redress. He can bring the pleadings and the findings here, and if it should appear that any of the facts alleged and not found, and in support of which there was any testimony, would, if true, have changed the result, and compelled a different judgment, it would be the duty of this court to remand the case for a new trial. While we are compelled to hold that not every omission of the district court to find specifically upon all the issuable facts will compel a reversal, we think the better practice is, for the district court to so find. And such our observation shows us to be the general custom. And for this reason, if all the facts are found, and this court holds that the judgment is erroneous, it may often dispose of the case by a final judgment, while if the facts are only partially found, it will be compelled to remand the case for a new trial. In this case, (and this leads us to the second question,) we think the finding complained of is sufficiently direct, definite and positive, and is also pivotal and decisive. That finding is as follows:
“That said defendant never at any time agreed to give said plaintiff a continued, free, and unrestricted use of said entrance, stairway, and landing in his said building, or any other right or interest that he could not ignore at any time.”
The petition states substantially as follows:
“In March 1871, McCandliss, plaintiff, purchased of one Eskridge, who was the owner thereof, a part of lot 175 on Commercial street, in the city of Emporia. After the purchase, contemplating the erection of a permanent brick building on that portion of the lot he had purchased, he made an arrangement with Eskridge (who was the owner of the balance of the lot adjoining plaintiff’s on the north) to the effect that he might build the north wall of his contemplated building upon the line between them so that 6 J inches of the wall would rest upon the plaintiff’s land, and 6J inches upon the land owned by E. The plaintiff immediately commenced the erection of a permanent brick building, 70 feet in length, 22 feet in width, and two stories high, with the north wall resting partially upon his land and partially upon the land belonging to E., in accordance with the arrangement made with E. About the 22d of July 1871, plaintiff had completed the walls of said building, but no part of the second story of the building was completed except the walls. The north wall had cost plaintiff the sum of $530, and was reasonably worth that amount. At that time Kelsey, defendant, with full knowledge of the arrangement between plaintiff" and E., purchased of E. the remainder of lot 175 adjoining the plaintiff on the north, including that portion of it on which the north-half of plaintiff’s north wall rested. Defendant immediately commenced the erection of a permanent brick building upon that portion of said lot which he had purchased of E., which building adjoined on the north the building of plaintiff. Plaintiff and defendant then entered into a parol agreement, whereby defendant was to make an entrance, doorway, and stairway in the front of his building next to and adjoining the north wall of plaintiff’s building, and was to make a landing-place at the head of the stairway, opposite to a doorway to be cut by plaintiff through his north wall; and when the buildings were completed, the plaintiff, his heirs and assigns,, should forever have, use and enjoy the free use of a right of way in, to, over and about the landing-place, stairway, doorway and entrance so to be made by defendant in his building; and in consideration of this agreement on the part of defendant, plaintiff was to make the defendant a good and sufficient deed for the north-half of the plaintiff’s north wall, and the defendant was to use said partition-wall as the south wall of his (defendant’s) building. And it was further agreed that plaintiff should cut a door-way in his north wall opposite to the landing-place at the head of the stairway to be made in defendant’s building, and that plaintiff should arrange the second story of his said building with reference to obtaining ingress and egress thereto and therefrom by means of the landing-place, stairway and doorway in defendant’s building. Plaintiff further alleges, that he, relying on this parol agreement, with a "full knowledge on the part of defendant that he was relying on it, at great expense cut a doorway through his north wall opposite to the landing-place at the head of the stairway in defendant’s building, and also at great expense arranged the second story of his building with direct reference to obtaining ingress and egress thereto and therefrom by means of the doorway, stairway and landing-place in defendant’s building; that about the 11th of August, the plaintiff, for the purpose of carrying out his part of the parol agreement with defendant, made defendant a good and sufficient deed for the north-half of his said north wall; that while the consideration mentioned in this deed was the sum of one dollar, yet that in truth and in fact there was no money consideration for it, but that the only consideration therefor was the agreement made by the defendant to the plaintiff as to his (the plaintiff’s) free use of the stairway, etc., in defendant’s building; that both buildings have been completed, and are permanent structures, built of brick, stone, iron, and wood, and that the north wall of plaintiff’s building is the south wall of defendant’s building; that the defendant has failed to perform his part of the contract, except, only, that he built in his building the doorway, stairway and landing-place that he agreed to; that the plaintiff, relying upon the promises of the defendant, upon the completion of his building moved with his family into the second story of his building, and has used and occupied the same ever since as his residence; that .for the purpose of ingress and egress to and from his second story, it is necessary to use the stairway, etc., in defendant’s building; that plaintiff has faithfully carried out his part of the parol agreement entered into between him and defendant, but defendant, for a long time prior to the commencement of this action, has, in direct violation of his said agreement, forbidden and refused to allow plaintiff or his family to usé said landing-place, stairway, and doorway in his building; that the reasonable worth and value of the half of plaintiff’s north wall, that was deeded to defendant by plaintiff, was the sum of $530; that the expense of cutting a doorway through his north wall was the sum of $25; that plaintiff will be damaged if not permitted to use the stairway, etc., in defendant’s building according to agreement, in at least the sum of $500; that unless the defendant be restrained from interfering with the plaintiff’s free use of the stairway, etc., plaintiff will be without remedy. Wherefore,” etc., closing the petition with a prayer for appropriate relief.
Now can there be any question but that this finding negatives the existence of any such parol agreement as is alleged in the petition, and in so negativing it completely disposes of plaintiff’s claim for relief? If defendant not only never agreed to give plaintiff the continued, free, and unrestricted use of said stairway, but also never agreed to give him any other right or interest that he could' not ignore at any time, he has certainly done no legal wrong to the plaintiff in preventing the further use of the stairway; and the courts can not interfere to adjust and enforce the obligations of mere neighborly courtesy and kindness. If we turn to the testimony, we find that there was enough to sustain the finding, and such also as to justify the form in which it was made. The defendant testified, that while the work was progressing a written agreement was presented to him for his signature, which would give the plaintiff the rights he now claims; that he refused to sign it, and told the plaintiff that he would not sign anything that would interfere with his rights to sell, and would not give him any rights whatever in his building. At another time he said he had no objections to plaintiff’s using the stairs, so long as their respective families occupied the second stories, and could agree, but he would not give him any rights that he could not ignore, and that he did not believe any house or any stairway was ever built big enough for two families, but he had no objections to the plaintiff’s trying to see how it would work. Evidently the court found in accord with this testimony. That finding is conclusive upon us, and we think decisive of the case adversely to the plaintiff.
There being no other matter presented for our consideration, the judgment will be affirmed.
All the Justices concurring..
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to require the judge of the district court of Stevens county to consider and rule upon a motion for a new trial.
An information was filed against the plaintiff charging him with the murder of C. E. Hall. The defenses were that the plaintiff did not do the shooting charged in the information, that Hall did not die from wounds inflicted by the plaintiff but from other causes, that the killing was justifiable, that it was excusable, and that the plaintiff was insane at the time the homicide was committed. The court gave among others the following instruction:
“If the defendant, T. W. Campbell, shot and killed the said C. E. Hall at the time and place and with a shot gun, as charged in the information, and if at the time he did so he was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that what he was doing was wrong, then the law does not hold him responsible for his act. On the other hand, if he was capable of understanding what he was doing, and had the power to know that his act was wrong, then the law will hold him criminally responsible for it. . . . It devolves upon the state to prove to your satisfaction, beyond a reasonable doubt, the defendant’s sanity, as above defined, at the time of the shooting: If you believe from all the evidence in the case, beyond a reasonable doubt, that the defendant at the time and place, and in the manner charged in the information, shot and killed C. E. Hall, and if you should fail to find from all the evidence in the case, beyond a reasonable doubt, that the defendant at the time of such shooting and killing was insane, as above defined, then you must acquit the defendant.”
The jury returned the following verdict:
“We, the jury empanneled and sworn in the above-entitled case, do upon our oaths find the defendant not guilty, and we further find that the defendant was insane at the time the offense was committed.”
Thereupon the court committed the plaintiff to the hospital for the dangerous insane. On the next day the plaintiff filed a motion for a new trial on the grounds common in criminal cases, and a motion to discharge the plaintiff from custody. The motion to discharge was overruled, but the court declined to consider the motion for a new trial, and the commitment was duly executed:
The statute governing the controversy reads as follows:
“Whenever during the trial of any person on an indictment or information evidence is introduced to prove that he was insane, an idiot or imbecile or of unsound mind at the time of the commission of the offense, and such person shall be found to have been at the date of the offense alleged in said indictment or information insane, an idiot, or an imbecile, and is acquitted on that ground, the jury or the court, as the case may be, shall so state in the verdict, and in said case it shall be the duty of the jury to pass specially on the question of the sanity of the defendant, and the court shall thereupon forthwith commit such person to the state asylum for the dangerous insane for safe keeping and treatment, and such person shall be received and cared for at said institution. No such person so acquitted shall be liberated therefrom, except upon the order of the court committing him thereto and until the superintendent of the said asylum for the dangerous insane shall certify in writing to such committing court that in his opinion such person is wholly recovered and that no person will be in danger by his discharge.” (Laws 1911, ch. 299, § 5.)
The verdict conforms to the statute. Evidence was introduced at the trial to prove the defendant was insane at the time the offense charged in the information was alleged to have been committed. The jury passed specially upon the question of the plaintiff's sanity. He was found to have been insane on the date of the alleged offense, the jury so stated in its verdict, and the plaintiff was acquitted of crime on that ground. Under these circumstances it is clear that the law governing procedure in criminal cases ceased to have any application the moment the verdict was returned. The plaintiff has been acquitted of crime. A motion for a new trial on the information charging a crime has no office to perform and no possible ground for an appeal exists. The criminal case has terminated in the plaintiff’s favor as certainly and as absolutely as if the special finding of insanity were absent from the verdict.
From the time evidence of insanity was introduced the prosecution bore a double aspect — a trial for crime and an inquest relating to sanity. The verdict having eliminated responsibility for crime and having so ended the criminal proceeding, the statute steps in, adopts the verdict the same as if it were the result of an in quest, and directs what shall be done. The procedure-is special for the case to which it applies, and the district court .has no authority beyond that conferred by the statute. No provision is made for setting aside the verdict and for granting a new trial, and no appeal is provided for. On the other hand, such proceedings are clearly forbidden by the peremptory requirement that when the verdict is returned the court shall thereupon forthwith commit the person tried to the hospital for the dangerous insane, and by the special and exclusive provision relating to liberation. The procedure prescribed by the General Statutes governing insanity proceedings (Gen. Stat. 1909, §§ 4819-4854) is ignored and a method of handling the dangerous insane is provided which is sui generis. New trial and appeal are matters of legislative discretion and favor. They may be granted or withheld, as the legislature sees fit. Having been withheld in the case of any person found to be insane when tried upon an indictment or information charging crime, and acquitted on that ground, they do not exist.
It will be observed that the statute quoted does not apply to a defendant under indictment or charged by information who at or before the time of trial is discovered to be unable to comprehend his situation and make a defense because of insanity. Other provision is made for the conduct of such cases. The statute is designed to meet the defense of insanity successfully interposed in the course of a prosecution for crime. This defense is in essence and effect one in the nature of confession and avoidance. In civil cases a defendant is required to be consistent. He can not, as the expression is, “blow hot and cold.” When the general welfare is concerned he may do this. When on trial for a breach of social duty he may deny generally, excuse, justify, tacitly admit, and still deny. His plea of not guilty puts all the allegations of the indictment or information in issue to the end of the trial, but he may say, “although I did the killing, I was mentally irresponsible.” The statute still contemplates the establishing of the act on which the charge of crime is based, as in this case, a killing. The instructions quoted above were properly framed on this theory. But the statute deals with the result of a successful interposition of the defense of insanity in its own way. It disturbs the former practice in such cases, cuts across many current legal and medico-legal conceptions, and ignores to a considerable extent current legal terminology. But no confusion will result if the statute be applied by the courts in the field and in the manner indicated by its simple terms.
It is not necessary to notice specially the arguments advanced by the plaintiff. Practically all of them lead to the application of the provisions of the code of criminal procedure relating to new trial and appeal. It is utterly immaterial what errors were committed by the court in the investigation of the subject of liability for crime, because the plaintiff has been acquitted. If the verdict in this class of cases were “guilty but insane” the right to resort to the usual procedure for a review of the proceedings establishing guilt might be considered. But there is no method known to the law for retrying a defendant on a charge of crime of which he has been acquitted by the verdict of a jury. The legislature did not care to place the state in the situation of being unable to retry a defendant on the charge contained in the indictment or information while leaving it open to the defendant to obtain a new trial on the question of his sanity. Consequently the special verdict establishing insanity, upon 'which the acquittal of crime rests, is accepted as well founded and is executed without further examination.
The writ is denied.
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The opinion of the court was delivered by
Brewer, J.:
Two questions are presented by plaintiffs in error. First, an alleged error in the modification of 'an instruction; and second, that the verdict is contrary to the evidence. Of these in their order.
The action was against an ex-treasurer of the school district of Paola, and the sureties on his bond, for not paying over to his successor in office the funds claimed to be in his hands. Among other defenses the treasurer tendered an order drawn by one L. E. Post on the board of education and in his favor for $2,040, and claimed that the board owed said Post at least that amount on a contract for building the school-house. Post had been the contractor for a large school-building just built for the plaintiff. Snyder, as treasurer, had loaned money of the school fund to some sub-contractors under Post, and had received this order from Post in payment of the loan. There was a conflict in the testimony as to whether this loan had been made by the treasurer on his own responsibility, or with the knowledge and approval of the board of education. The order was not accepted. Upon this, counsel asked the instruction, “If the jury find from the evidence that the plaintiff on the 7th of May 1873 owed L. E. Post the amount of said order, then it was the duty of the board to accept said order and credit his account for the amount.” This was modified by the court by adding, “provided they should find said order was in payment of a loan made by authority of the. board, or subsequenty ratified by said board.” Ought the court to have given the instruction as offered? and was there error in the modification? We think not. At least, we see nothing of which the plaintiffs in error can complain. That no action can be maintained upon an unaccepted order, is clear. McCubbin v. City of Atchison, 12 Kas. 166. True, it is sometimes treated as an equitable assignment of a claim for money due, and sustained upon that ground. But it is not the duty of the board of education, or the common council of a city, or the board of commissioners of a county, to permit théir respective treasurers to pay out money on their own responsibility, and to whomsoever they see fit, and then accept in lieu of said money orders drawn on them by their respective creditors. The treasurer was at liberty to “pay moneys only upon a warrant signed by the president,” etc. Laws 1872, p. 223, § 111. Whatever moneys he received it was his duty to hold until such a warrant was presented; and upon settlement he must return either the money or the warrant. Any other rule would be fraught with great danger. It would open the door to speculation on the part of treasurers, to unjust preferences of creditors, and consequent litigation. .It would tend to prevent that orderly arrangement of the financial affairs which results in regular and not excessive taxation. The treasurer is not the financial agent of the board. He is simply the custodian of the funds. The board determines its own financial matters — settles what debts shall be contracted, and when paid — what taxes shall be levied, and which .of matured obligations shall be first paid. It makes its own contracts, and settles with its contractors. To permit the mere custodian of its funds to interfere in these matters, would be to introduce inexplicable confusion. If he may advance to one creditor of the board, and compel the latter to accept an order for the debt in lieu of the money in his hands, he may to another, and so become himself the financial agent and manager of the board. How easy the way, and how strong the temptation to personal profit, if such a rule could be sustained. How many of the municipalities of this state find their obligations depreciated in value, and passing in the market for less than their face. Give the treasurers the power implied by this instruction, and how speedily would all the funds' pass out of the treasurers’ hands, not as the official boards might deem best, but as the friendships or the interest of the treasurers should dictate. But it is needless to pursue this line of thought further. The evils attendant upon such practices have been too often and too clearly explained to need argument or illustration here. The statute forbids the treasurer to pay out money except upon a duly-authenticated Warrant, and neither law nor equity will help him to disobey the statute with impunity. The instruction as asked was not the law, and as modified contained no error of which the plaintiffs in error can complain.
The second matter of error claimed is, that the verdict is against the evidence. The point here is this: The treasurer served two terms. The bond sued oh was given for his second term, commencing* in May 1872. It is claimed that the misappropriation of funds was in December 1871, and therefore not covered by this bond. .Of .course, if the misappropriation was in 1871, the sureties on this bond were not responsible. An examination of the testimony fails to leave in our minds a conviction as to when the misappropriation took place. The order is dated May 7th 1873. It refers to a note given by the sub-contractors, and purports to be on account of that note. The note, which is both a receipt and note, bears date December 1st 1871. But the note is for $2,000, and calls for six per cent, interest. The order is for $2,040. Snyder, the treasurer, testifies that the order was given for the note. Why did it not include all the interest? He says that the accrued interest was included in a settlement made in May 1872; but still there was a year’s interest subsequent to that settlement. Again, in reference to the loan itself the testimony is not clear. It would seem that a loan of $10,000 to H. M. Holden of Kansas City First National Bank, was made in December 1871, and tacitly authorized and approved by the board. Snyder testifies that a part of this $10,000 supposed to have been loaned to Holden was really the loan to the sub-contractors, and that the note was given at the time the loan was made. But he never presented the note until the final settlement in May 1873, though he says some of the board knew of its existence prior thereto. Again, he testifies that he informed the school board of loaning Holden the $10,000 about the time of making,the loan, and that he made the loan December 10th 1871. This would make the note dated ten days before the loan. Again, it appears from his testimony that he had some private transactions with the sub-contractors, and that they owed him some money. Still again, the attention of the learned counsel does not seem to have been called to the time of this misappropriation until the filing of the motion for a new trial. At least, no reference is made to the matter in either the instructions given or those refused. The district court which heard the testimony overruled the motion for a new trial based upon this ground. Under these circumstances we are unwilling to hold that it is clear that the misappropriation which unquestionably was not disclosed to or known by the board until during the life of the bond sued on was actually made prior to its execution. The custody of the funds during both the year covered by this bond, and that immediately prior, was in one of the defendants, the treasurer. The board prove a defalcation made manifest toward the close of. the last year. The settlement made at the close of the first year was satisfactory, and showed nothing wrong. While now the assertion of the treasurer, unsupported by other testimony, (for neither the contractor nor the sub-contractors are witnesses, and no other witness testified to any knowledge of the transaction,) is, that the misappropriation was during the first year, yet there are many circumstances tending to discredit this assertion, and we cannot say that those circumstances are not sufficient to warrant the verdict.
We are compelled therefore to order an affirmance of the judgment.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
Passing over all preliminary and minor questions, the main question presented to us in this case is, whether certain bonds issued by the township of Oxford, in Sumner county, to the “Oxford Bridge & Perry Company,” a private corporation of said township, are valid. Said bonds show upon their face that they were issued on April 15th 1872, “in pursuance of an act of the legislature of the state of Kansas, entitled ‘An act authorizing the trustee, treasurer, and clerk (or any two of them) of the township of Oxford, county of Sumner, and state of Kansas, to subscribe for stock in the Oxford Bridge Company to the amount of ten thousand dollars, to aid in the construction of a bridge across the Arkansas river at Oxford in said county and state, and to issue the bonds of said township in payment therefor,’ ap proved March 1st 1872; and in pursuance of a vote of the qualified electors of said township had at an election held therein on the 8th day of April 1872.” Said act took effect March 21st 1872. (Laws of 1872, pp. 320, 321.) It provides for issuing “the bonds of said township to the amount of ten thousand dollars, for the purpose of aiding in the building and constructing a bridge across the Arkansas river at the town of Oxford in said county and state;” (§ 1.) But to whom the bonds were to be issued, is not designated in the act. And the body of the act does not anywhere provide for subscribing for stock in the “Oxford Bridge & Ferry Company,” or in any other company or corporation. The title of the act mentions the “Oxford Bridge Company.” Said act also provides that, “Before any of the bonds herein-before mentioned shall be issued, the question of issuing said bonds shall be submitted to the legal voters of said township, at an election to be held for that purpose, which said election shall be conducted in all respects in conformity with the general election laws of this state. The time and place of holding said election shall be designated by the said trustee, treasurer and clerk (or any two of them) by giving at least thirty days’ notice by posting written or printed notices thereof in three of the most public places in said township;” (§5.) Now the election to determine whether the bonds should be issued or not was in fact held on the 8th of' April 1872, only eighteen days after the act authorizing the issue of the bonds took effect; and this is shown upon the face of the bonds. The notices of the election were in fact given only from March 24th 1872 to the day of the election, only fifteen days, instead of thirty, as the act prescribes; but this is not shown on the face of the bonds. And the bonds were in fact issued on April 15th 1872, only twenty-five days after the act took effect; and this is shown on the face of the bonds. We do not mean that the time when the act took effect is shown on the face of the bonds, but it is shown on the face of the bonds under what act, and under what election, the bonds were issued, and when the election was held, and when the bonds were issued; and every one having anything to do with the bonds is required to know when the act under which they were issued took effect, and therefore what time elapsed after the act took effect till the election was held and the bonds issued. Now we think the election under which the bonds were issued was void. First, because sufficient time had not elapsed after the act took effect, and before the election was held; second, because sufficient notice of the election had not been given, and could not have been given, after the act took effect and before the election was held. And we think the bonds are void because no sufficient or valid election was held authorizing their issue. The legislature evidently intended that no bonds should be issued unless an election authorizing their issue should first be held. The legislature evidently intended that no such election should be held within less than thirty days after the act should take effect; and the legislature evidently intended that no such election should be held unless “at least thirty days’ notice” thereof should first be given. The bonds were, in this case, issued in less than thirty days after the act authorizing their issue took effect. As we have already stated, the bonds do not show upon their face that the township board did not at least thirty days prior to said election call the election and give notice thereof. But even if they had done so, their action in that respect would have been void. Thirty days prior to said election there was no law in force authorizing the township board to call an election for any such purpose, or to give any notice of such an election. There is no room therefore for any innocent or bona fide purchaser of the bonds to suppose that the election was legally called, or that the proper notices thereof were legally given. And as this is an election that depends for its validity upon being legally called, and upon legal and proper notice thereof being given for at least thirty days prior to the election, and as these things were not done, the election must be held to be invalid. This is wholly unlike an election where the object of the election and the time and place for holding the same are all fixed by law. There the election is valid, although a notice required by law may not be given. In such a case the electors are presumed to know the law. They are presumed to know what is to be done at the election, and the time and place of holding the same, because these are all fixed by law. Where “the time and place” of holding the elections are to be “designated” by some board or person, as in this case, and are not fixed by law, then the notice required by law must be given; and if the time “designated” be soyiear in the future that legal notice cannot be given, then the election must be held to be void. Beal v. Ray, 17 Ind. 554. As to the necessity for sufficient notice in certain special elections, see People v. Porter, 6 Cal. 26; McCune v. Weller, 11 Cal. 49; People v. Martin, 12 Cal. 409; Westbrook v. Rosborough, 14 Cal. 180. See also Jones v. The State, 1 Kas. 273; Gossard v. Vaught, 10 Kas. 162.
The judgment in this case must be rendered for the defendant.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
During the year 1873 Read was the owner of a lot in Winfield, upon which he was putting up a bank building. The carpenter work was let by contract to one Tansey. Jeffries was employed by Tansey, and did work under him upon the building. When the building was completed there was a balance still due Jeffries for his work. For this balance he was proposing to file a lien, but desisted upon the statement of Read that another party had filed a lien, and his promise that he would make that a test suit, and if compelled to pay that claim would pay Jeffries his. Read adjusted that claim without suit, and paid a reduced amount in settlement of it. Thereupon, the time to file a lien having expired, Jeffries brought his action to recover the amount due for his work.
We see no error prejudicial to the plaintiff in error in the various rulings complained of except in the one matter of a set-off. Read proposed to set off against the plaintiff’s claim a judgment in his favor and against plaintiff and Tansey. This was disallowed, and in this we think was error. The judgment was a proper matter of set-off. An action can be maintained on a judgment, and e converso, it can be set up in an answer and used as a defense. Burnes v. Simpson, 9 Kas. 658. Though the judgment was against two parties an action could be maintained upon it against either of the judgment-debtors, and in like manner it could be used as a set-off against either. Gen. Stat., p. 183, §§ 1 and 4. Counsel contends that the action was one for unliquidated damages for breach of a contract, and that therefore no judgment could be made a set-off. But the contrary has already been decided by this court. Stevens v. Able, 15 Kas. 584; Pomeroy on Remedies, §§ 798, 799. For this error the judgment must be reversed, and the case remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin, and the question was as to the validity of a sale claimed to have been made by one I. N. Phillips to plaintiff. Defendant was sheriff of Johnson county, and under an execution against I. N. Phillips levied on the property. The property consisted of livery stock in the .city of Olathe. Plaintiff was a farmer living some miles off in the country. The sale was made at the farm of plaintiff. He was not from the time of the sale to the time of the levy in Olathe, and I. N. Phillips remained in the actual charge, though, as was claimed, as the agent of plaintiff. The errors alleged are in the giving of instructions. The two propositions to which specific objection are made are —
1st, “The unexplained possession by the vendor, after the sale, is conclusive evidence of fraud.”
2d, “The actual participation by the vendee in the vendor’s fraudulent intent, is not necessary to avoid the sale. It is enough if he knew of such intent, or of facts sufficient to excite the suspicions of a prudent man, and put him on inquiry.”
That good faith is as essential to support a sale like one before us, as a sufficient consideration, will not be questioned. Twyne’s Case, 3 Coke, 80; 1 Smith’s Leading Cases, 42; Baldwin v. Peet, 22 Texas, 780; Chandler v. Van Roeder, 24 How. (U. S.) 224; Pullevin v. Newberry’s Adm’r, 41 Ala. 1168. And that a continuance of possession is evidence of a want of good faith, as well as a want of sufficient consideration, is settled by the statute. Gen. Stat., p. 504, § 3. That possession may be retained, and still there be a valid sale, is also clear, and so in unmistakable language the court instructed the jury. And this instruction, as to the effect of an unexplained possession, must be considered in reference to and as qualified by the other instructions. There has been a vast amount of controversy as to the effect of a retained possession upon an alleged sale, when challenged by a creditor, or subsequent purchaser. It is all based upon the idea that possession follows title, and that where there is a transfer of title there should be a change of possession. In some courts it has been held, that a failure to change possession is so inconsistent with a transfer of title that it creates a presumption of law against the alleged sale. This presumption of law,no evidence of the good faith of the parties, and of the payment of full consideration, can overthrow. In others, such failure to change possession is merely evidence against a sale, which may be explained. The presumption is one of fact, and like all presumptions of fact open to explanation by other testimony. It is like the presumption of guilt which flows from the possession of recently-stolen property. It casts upon the possessor the duty of explanation. (See for a full discussion of this question and the authorities thereon, Twyne’s Case, and notes thereon, in 1 Smith’s Leading Cases, Hare & Wallace’s notes, pp. 47, and following.) Our statute has accepted the latter construction, and provides in the section cited, that “Every sale * * * unaccompanied by an actual and continued change of possession, shall be deemed to be void, * * * until it is shown that such sale was made in good faith, and upon sufficient consideration.” In other words, proof of actual good faith, and payment of sufficient consideration, does away with the presumption which flows from a retained possession — shows that such possession does not imply a retained title, or a secret trust — in short, explains the possession. Until it is so explained, it is evidence against the sale; and unless so explained, it is conclusive evidence. To that extent, and only to that extent, do we understand the instructions of the court, taken as a whole, to have gone; and in that is no error. (See upon this, Ayres v. Moore, 2 Stewart (Ala.) 336; Peck v. Laud, 2 Kelly (Georgia) 1; Flemming v. Townsend, 6 Georgia, 104; Beers v. Dawson, 8 Georgia, 557; Robinson’s Ex’rs v. Robards, 15 Mo. 459.)
As to the second objection, the court distinctly charged that the vendee must be a party to the fraud to avoid the sale, and then, in another instruction, apparently in explanation of what was necessary to make him a party to the fraud, charged that it was enough if he knew of the vendor’s fraudulent intent, or of facts sufficient to put him upon inquiry. Is this error? We think not. Knowledge of facts sufficient to excite the suspicions of a prudent man, and put him upon inquiry, is, as a general proposition, equivalent to knowledge of the ultimate fact. Garaby v. Bayley, 25 Texas, (Suppt.) 294; Pitney v. Leonard, 1 Paige Ch. 461. And if the vendee knew of the fraudulent intent of the vendor, and bought with that knowledge, he can scarcely claim to be a bona fide purchaser, for he was knowingly helping the vendor to accomplish the fraud and do the wrong.
' There appearing no error in these rulings, the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The only question in this case is, whether the common-law rule in reference to the conditions upon which copies of instruments may be admitted in evidence, is changed by §27 of chapter 22 of Gen. Stat., and §§11 and 12 of chapter 87 of the Laws of 1870, so as to admit the record-copy of a deed when it appears simply that the original is not in the possession or under the control of the party desiring to use it. We think it is. The language of the statute is plain and unambiguous. It says that such record-copy “may be received in evidence in any court,” and also that, when the “ original is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original.” And being merely a matter of evidence, we think it clearly within the power of the legislature to alter and modify the conditions upon which secondary evidence of the contents of written instruments may be admitted.
Thp judgment will be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The only question in this case is, whether the petition is sufficient to sustain the verdict and judgment. No objection was made to it until after the trial and verdict. An objection thus made will be regarded with little favor, and the defect in the petition must be plain, and in a vital matter, or it will be deemed to have been waived. Mitchell v. Milhoan, 11 Kas. 617. Unquestionably this petition is open to criticism, but still we think it must be held sufficient. It alleges that defendants “took from one Charles Beuro the sum of $114.53, and the said Charles Beuro gave to the plaintiffs an order therefor, for value received, and that the said Charles Beuro assigned to the plaintiffs his cause of action against the defendants.” It also alleges nonpayment in whole or in part. Counsel contends that the presumption of law is, that this “ money was taken rightfully and legally, and by authority, in the usual routine of business.” It is true, there is no allegation that the money was wrongfully taken, or even that it was the money of said Beuro. But there is another presumption, that the possessor of personal property is its owner; and this money is shown to have been in the possession of Beuro. In other words, the petition shows Beuro in possession of money, and presumptively, therefore, the owner, and rightfully in possession; that this money is taken from him by defendants, and never returned. No authority for such taking is shown. Now after the trial, without any objection to the petition, we think the court ought not to set aside the entire proceedings because of a failure to allege that the money was taken wrongfully, and without authority. But beyond this, the petition alleges that the district court, after this taking by defendants, made an order directing John Polster to pay this money into court, that said Polster did not pay the money into court as ordered, but took the order to the supreme' court, and gave an undertaking signed by both the defendants, a copy of which is attached to and made a part of the petition, conditioned to pay said sum of money into court if said order should be affirmed, that said order was affirmed, and that still said money has not been paid into court. This, while perhaps not exactly showing that the original taking was unlawful, clearly shows that the defendants have no longer any right to retain the possession, and are guilty of a wrong in so doing.
We think therefore that the petition, as against any objection raised for the first time after trial and verdict, must be held sufficient, and the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Burch, J.
This original proceeding for a writ of habeas corpus presents the pitiful plea of a young mother who has lost her little daughter by the process of the law. The story of the legal interference with providential preference follows.
When the petitioner was only a little more than a child herself she pleaded guilty to a misdemeanor before a justice of the peace and was committed to the Kansas Industrial Farm for Women. At the time she entered the institution there existed in- expectation the child involved in this action. The father of the child is shown to have been a soldier but is unnamed and unknown to this court. Near the close of the period of her pregnancy the petitioner was sent to a hospital wherein she became a mother ,on October 2, 1942. Ten days later, while the petitioner was still convalescent and weary from having' carried successfully the burden of her baby “through the ■ valley of the shadow of death,” a representative of the Kansas Industrial Farm for Women filed in the juvenile court of Leavenworth county, Kansas, an application requesting that the petitioner’s infant daughter be placed in the State Home for Orphans. On the same day, and without notifying the petitioner in any manner of the pendency of the action, the juvenile court found the daughter was a dependent and neglected child and ordered the probation officer to place the child in the State Home for Orphans.- On the same day the petitioner, Marie Schott (Loucka) was released from the Kansas Industrial Farm. We are not informed whether she was released before or after the hearing in the juvenile- court but the record shows that she did not appear at the- hearing either in person or by counsel. Five days later the petitioner’s daughter, Donna May Schott, was admitted to the State Home for Orphans at Atchison, Kan. . ■
The State Home for Orphans apparently kept Donna May in its custody for about seven months, and on May 7, 1943, caused or permitted the child to be-placed in . the home of Guido Schott and his wife, Dorothy Schott, who ever since haVe had the actual- custody of -the little girl.. Guido Schott is a brother of the petitioner, and he anchhis wife have given Donna May tender and proper care. As a consequence, Donna May has manifested much affection for them and théy, in turn, love her so much that losing her will bring a dreadful hurt to their hearts. They assert in their pleadings that they are eager and able to care for Donna May and provide her with the necessities of life. No one, including the members of this court, questions in this proceeding the fitness and fineness of the respondents, Guido and Dorothy Schott. But a mother’s love also is involved and consequently, we must consider her conduct since she lost the companionship and custody of her little baby.
The mother, who is the petitioner, has married and she and her husband have a home of their own. The respondents do not now and never have assertéd that the petitioner is not a fit and proper person to have the custody of her child. Moreover, no court in the varied course of legal entanglements which have occurred has ever found adversely to her on such an issue or, specifically, that it will be for the best interests of the child to have it placed in the custody of some one other than the mother nature named. For the past three years she has been seeking to obtain actual and legal possession of Donna May by recourse in the courts. In 1944 she filed a petition for a writ of habeas corpus in the district court of Douglas county. That action was dismissed upon the conclusion that such court did hot have jurisdiction. Thereafter she filed in the juvenile court of Leavenworth county a motion to set aside the original order granting custody of the child to the State Home for Orphans. The motion was denied and the petitioner appealed to the district court of Leavenworth county. On February 27, 1946, the appeal was dismissed also, upon the conclusion that such court did not have jurisdiction. Thereafter on July 23, 1946, the respondents, Guido and Dorothy Schott, obtained an interlocutory decree of adoption from the probate court of Douglas county. On September 26, 1946, the petitioner filed her original petition for .habeas corpus in this court. On December 21, 1946, she filed a supplemental petition for such a writ and a motion requesting that the respondents,’ Guido and Dorothy Schott, be made parties and that the action they had brought for the adoption of Donna'May Schott in the probate court of Douglas county be stayed until the further order of this court* We sustained the motion as of January 3,1947. Since, such date the respondents have filed their respective answers herein* and counsel for the parties have filed- abstracts and briefs and orally argued the case. Because of the absence of appeal to this court from any of the rulings made by other- courts we are concerned only with the effect such rulings possibly may have upon the present action which originated in this court. • • ■
Counsel for the petitioner contends that the original order made by the juvenile court placing Donna May in the custody of the State Home for Orphans was void because no notice was given to the mother-as required by G. S. 1935, 38-405. Counsel for the respondents concede that the order originally made was void for the reason given but assert that the juvenile court later acquired jurisdiction when the petitioner filed in the same court a motion to set aside the original order, which motion contained both jurisdictional and non jurisdictional grounds. In support of such-reasoning counsel for the respondents cite Barnett v. Insurance Co., 78 Kan. 630, 97 Pac. 962; Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073; Matthies v. Union Products Co., 138 Kan. 764, 28 P. 2d 754; and Olsen v. Lambert, 158 Kan. 94, 145 P. 2d 159. In addition respondents’ counsel assert that since no appeal was taken from the order of the district court of Leavenworth county dismissing the appeal from the ruling denying the petitioner’s motion which was filed in the juvenile court, that therefore the order of the juvenile court became final and that it cannot be set aside in a habeas corpus proceeding because to do so would constitute a collateral attack upon a final judgment of custody in violation of G. S. 1935, 60-2213, Second. They cite, also, to such effect LeShure v. Zumwalt, 151 Kan. 737, 100 P. 2d 643.
Can it be correct that this court cannot consider in an original habeas corpus case the future welfare of a child because some other court, years ago, placed the child in the custody of a designated party? If such be true, then courts having jurisdiction in habeas corpus cases cannot be concerned with what may be for the best interests of a child. We think that courts having jurisdiction are not powerless to act in furtherance of the interests of a child. Apparently no court heretofore has given much consideration to the child involved in this action. We note that nowhere in the legal labyrinth presented in the instant case has any court seen fit to appoint a guardian ad litem for the baby. The question before us does not turn upon whether the juvenile court ever had jurisdiction. Surely no one can now seriously assert that Donna May is still a dependent and neglected child. Two homes await and want her. In either of them she will be given adequate and affectionate care. Such being true, the only question which need concern us is: Which home should have Donna May? In the case of In re James Shephard, 67 Kan. 870, 74 Pac. 1133, we bluntly held:
“The modified decree of the district cpurt changing the custody of the two minor children from the mother, Maude Gibson, to the petitioner, their father, is not binding on this court. The welfare of the children is still open to consideration. (In re King, 66 Kan. 695, 72 Pac. 263.)”
In Foundling Hospital v. Harrington, 113 Kan. 521, 215 Pac. 303, we held as follows:
“The jurisdiction of this court is questioned. It is contended that this court does not have power in a habeas corpus proceeding to take the child from the custody of one to whom that custody has been awarded by the juvenile court. Habeas corpus, from the organization of 'this state to the present time, has been used as a means to determine the fitness of those who have the custody of children, and under that writ children have often been taken from the custody of one person and placed in the custody of another. The respondent, under the order of the juvenile court, does not have any greater right to the custody of the child than a parent would have to the custody of his child. Where the best interests of a child will be promoted, its custody may be taken from a parent and given to a stranger. (Chapsky v. Wood, 26 Kan. 650; In re Guber, 105 Kan. 515, 184 Pac. 850.) The jurisdiction of the juvenile court is not exclusive. The'supreme court may, on habeas corpus, take an infant away from one to whom the custody of the infant has been given by the juvenile court and give that custody to another.” (p. 523.)
Later in the opinion appears the following:
“Juvenile courts are not given jurisdiction to determine the rights of contending parties to the custody of children. The jurisdiction of those courts is over dependent, neglected, and delinquent children. (Gen. Stat. 1915, § 3065, as amended by Laws of 1917, ch. 154.) Those courts are given control over such children although there may be no contest concerning their custody. In a proceeding in habeas corpus, any court having jurisdiction may adjudicate the rights of those contending for the custody of a dependent, neglected, or delinquent child, but jurisdiction then depends on the controversy over custody and not on the fact that the child is dependent, neglected, or delinquent.” (p. 524.)
In the case of Johnson v. Best, 156 Kan. 668, 135 P. 2d 896, wherein a guardian had been appointed for the person of a child, we held:
“Had the appointment of appellant as guardian been valid, appellee would not have been deprived of the custody of her child by virtue of such appointment where appellee’s fitness was not made an issue and determined against her in the proceedings for the appointment of appellant as guardian. (In re Brown, 98 Kan. 663, 159 Pac. 504; Melroy v. Keiser, 123 Kan. 513, 255 Pac. 978; Jagger v. Rader, 134 Kan. 570, 7 P. 2d 114.)” (p. 671.)
We have carefully examined the findings of the juvenile court made in connection with the original custody order entered’as-of October 12, 1942, and the journal entry filed as of June 14, 1945, covering the ruling on the motion to set aside the original, order and cannot find therein any statement indicating in any manner that the petitioner was not a fit person to have custody of her child. The only inference in the record to such effect is the fact that an early indiscretion on the petitioner’s part resulted in her being sent to the Kansas Industrial Farm for Women. Even if the petitioner’s legal rights have been impaired by reason of her counsel’s legal conduct in prior proceedings, this court can and should consider the welfare of her child in a habeas corpus proceeding. From the opinion by Mr. Chief Justice Harvey in the recent case of Paronto v. Armstrong, 161 Kan. 720, 171 P. 2d 299, the following is quoted:
. . . the use of habeas corpus has been broadened to include an inquiry as to the custody of minor children by a court having equity jurisdiction where two or more parties or groups of parties contend for such custody. See 39 C. J. S. 568 et seq., 29 C. J. 108 et seq., 25 Am. Jur. 202 et seq., and cases cited. In such use of habeas corpus, the legal rights of the contending parties are of no consequence or at most are of but little consequence. The primary and controlling question in such a case always is the' present and future welfare of the child. Legal questions presented are considered only as they bear, if at all, upon the question of what disposition of the child is for the child’s best interest and this is determined by the court upon all the facts and circumstances disclosed by the evidence. See Jones v. Jones, 155 Kan. 213, 124 P. 2d 457, and cases cited on page 219.” (p. 724.)
By reason of the foregoing, the only question which remains is: What should be done in furtherance of the present and future welfare of the child? We must decide whether she should be allowed to live longer with her uncle and aunt or placed in the custody of her natural mother. Donna May is now about four and one-half years old. Insofar as the record discloses, the conduct of her mother since she was released from the Kansas Industrial Farm for Women has not been improper. .As hereinbefore stated, no one now contends that the mother is not a fit person to have custody of her little girl. We cannot hold, as a matter of law, that a mistake the mother made more than five years ago eternally condemns her as an improper person to have custody of her own children. In the absence of any further contention as to the mother’s qualifications, the answer to the primary question must be found by considering not only the present but the future welfare of the child, as set forth in the last-cited case. If we leave her with her uncle and aunt, the hour must come when she must face the bewildering realization that the courts have decreed she cannot live with her own mother. Neither she nor her mother deserves 'such an agonizing penalty. A child rightfully asks, why? And candid explanation in this case probably would cast a needless dark, depressing shadow over the child’s entire life. We think and hope that Donna May will be happier and live a more normal life if she is spared such a deleterious revelation. As a result of the conclusion we have reached we need not prolong this opinion by giving reported consideration to the well-recognized rule that courts ordinarily prefer that proper parents be given possession and control of their progeny even though such a rule may be applicable and controlling in this case.
The State Department of Social Welfare is named as a party respondent in the present case because of its supervision of the State Home for Orphans. Such department now disclaims any interest in the custody or guardianship of Donna May and seeks to avoid costs. Upon such assurance the writ is denied as to the State Department of Social Welfare and is allowed as to the respondents, Guido and Dorothy Schott. The last-named respondents are directed to de-r liver forthwith the person of Donna' May Schott to the petitioner, and to dismiss the action pending in the probate court of Douglas county, Kansas, in which they seek to obtain a final order of adoption of Donna May. Schott.
Thiele, J., concurs in the result.
Hoch, J., not participating.
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The opinion of the court was delivered by
Wedell, J.
This is an original proceeding brought by The Consumers Cooperative Association, a corporation, against Edward F. Arn, attorney general; Frank J. Ryan, secretary of state; B. A. Welch, state bank commissioner; and the State Charter Board, consisting of those state officials.
The purpose of the proceeding is to effectuate the filing of an amendment to plaintiff’s articles of incorporation in the office of the secretary of state showing an increase in its capital stock from $2,000,000 to $12,000,000. The amendment pertains solely to that subject.
Plaintiff was originally organized, and chartered in 1931 as The Cooperative Union Oil Company, under our cooperative societies act, G. S. 1935, 17-1501 et seq., with a capital stock of $150,000. In 1935 plaintiff, with the approval of the state charter board, filed an amendment to its articles of incorporation changing its name to The Consumers Cooperative Association. In 1938 plaintiff filed its application with the state charter board to be brought under and to have the benefits of the cooperative marketing act. (G. S. 1935, 17-1601 et seq.) The application was approved. Plaintiff’s capital stock has been increased by amendments, approved by the charter board, as follows: In 1937 to $300,000; in 1943 to $800,000; in 1945 to $2,000,000. The instant certificate of amendment filed with the secretary of state in June, 1946, insofar as now material, provides:.
“That Section 1 of Article VI be amended to read as follows:
“ ‘Section 1. Capital Stock. The capital stock of this association shall be $12,000,000, consisting of one hundred twenty thousand (120,000) shares of common stock of the par value of $25.00 per share, and three hundred sixty thousand (360,000) shares of preferred stock of the par value of $25.00 per share.’ ”
Defendants do not contend the certificate of amendment filed is in any respect lacking in form or legal sufficiency.
In January, 1947, the state charter' board notified plaintiff of its refusal to approve this- amendment. In February, 1947, plaintiff again filed an application requesting that the amendment be filed and that the charter board state its reasons for its action in the event it refused to approve it. The amendment was again refused and in March, 1947, the charter board stated its reasons for such refusal. The charter board did not contend the requested increase in capital stock was excessive under the marketing act or that the certificate of amendment filed was lacking in legal sufficiency. On the contrary, it set forth alleged conduct of plaintiff in the operation of its business which, in the opinion of the charter board, constituted grounds for ousting plaintiff from conducting its business operations under the cooperative marketing act. The various alleged reasons assigned by the charter board as grounds for ouster are all set forth at length in the opinion in an ouster case subsequently filed and this day decided. (State, ex rel., v, Consumers Cooperative Ass’n, ante, p. 324, 183 P. 2d 423.) In our view of this case, as will presently appear, it is unnecessary to repeat here the alleged grounds upon which 'the ouster suit is based.
The charter board contends it has the right to consider all collateral matters that it believes are reflected by the public records and which it claims are common knowledge in determining whether it will approve, or disapprove, the requested amendment for an increase in the capital stock of the plaintiff. It argues that if, upon its own investigation of such collateral matters, it concludes a corporation is not operating pursuant to its charter powers and the law it may, and has the duty to, disapprove an application for an amendment to increase capital stock.
The plaintiff, in substance, contends: (a) The requested amendment seeks no enlargement or alteration of its existing charter powers, which were previously approved; (b) the cooperative marketing act contains no "limitation or restriction on the amount of its capital stock; (c) the certificate of amendment was regular and sufficient in form; (d) in view of the provisions of the new 1939 general corporation code the charter board is no longer required to approve an amendment to the articles of incorporation of this association; (e) if the charter board has the power or duty to approve or disapprove an amendment it can look only to the .legal sufficiency of the certificate of amendment and cannot determine the existence, or legal effect, of collateral facts which, if judicially determined, might or might not constitute grounds for ouster;' (/)• if plaintiff is not operating in accordance with its charter powers, or the law, the proper remedy against it is an action in quo warranto to oust it; and (g) that the refusal to permit the requested amendment constitutes a denial of a statutory privilege which is having disastrous effects on its business.
While all these contentions of the parties are interesting, the immediate and primary question in this particular case is whether the charter board has authority to disapprove an amendment which seeks merely an increase in the capital stock of this plaintiff. The marketing act under which plaintiff is operating places no restriction or limitation on the amount of its capital stock. (G. S.. 1935, 17-1601 et seq.) Since the instant amendment seeks nothing except an increase in capital stock, it is difficult, if not impossible, to understand how the charter board, assuming it has power to pass on amendments, could refuse such an amendment so long as the plaintiff has not been ousted and remains in full possession of its.charter authority to operate its business. That statement, of course, assumes the certificate of amendment conforms in all respects to the requirements of law, a fact conceded in this case.
We shall, however, in accordance with the request of the parties pass on to a consideration of the broader and fundamental question whether, since the enactment of the general corporation code in 1939, the charter board must approve a requested amendment of articles of incorporation before the amendment can become operative, when the certificate of amendment itself is in all respect^ regular in form and legally sufficient.
• The answer requires us to construe the legislative intent as reflected by various pertinent statutes. The parties contend they are entitled to such a ruling under the declaratory judgment act. (G. S. 1935, 60-3127 et seq.) This court, of course, does not have original jurisdiction under the declaratory judgment act. From the facts alleged it is evident, however, and the parties agree, that this controversy has reached the stage where the consequential relief sought can be obtained through mandamus. In Public Service Commission v. Kansas Gas and Electric Co., 121 Kan. 14, 246 Pac. 178, it was held:
“The supreme court can take original jurisdiction under the declaratory judgment act only where the consequential relief to be had if the controversy involved had reached that stage could be obtained through quo warranto, mandamus or- habeas corpus.” (Syl. If 2.)
The parties agree this proceeding should be treated as one in mandamus. Under all the circumstances; including the fact this case is really a companion to the original quo warranto case, previously mentioned, and now before us, we shall treat the instant case as one permitting the relief ordinarily obtainable in a mandamus proceeding.
The fundamental question now before us pertains only to the power of the charter board to approve or disapprove amendments to articles of incorporation ■ formerly approved. Before discussing the subject of amendments it is well to bear in mind that in the instant case there is no question concerning the fact that plaintiff’s original articles of incorporation and all succeeding amendments thereto, except the last one, were approved.
Defendants concede article 15, chapter 17, Laws of 1923, which relates to cooperative societies, under which plaintiff was originally organized, never has required amendments to be approved by the charter board. Defendants, however, contend G. S. 1935, 17-1608 of the marketing act, under which plaintiff is now operating, does require amendments to be approved by the charter board. That statute provides:
“The charter may be altered or amended by any regular meeting or at any special meeting called for that purpose. Any amendment must first be approved by two thirds of the directors and then adopted by a vote representing a majority of all the members of the association. Amendments to the charter when so adopted shall be filed in accordance vñth the provisions of the general corporation law of this state and be approved by the charter board.” (Our italics.)
From the italicized portion of this statute it appears the legislature desired to make the required procedure for the filing and approval of amendments of charters of corporations operating under the cooperative marketing act conform to the procedure pertaining to the filing and approval of amendments of other corporation charters under the general corporation law. That amendments of charters prior to the enactment of the general corporation code in 1939 were required to have the approval of the charter board is conceded. (G. S. 1935, 17-216.) But that provision of the old law was expressly repealed by section 154, chapter 152, Laws of 1939, and the general corporation code now in effect contains no requirement that amendments of articles of incorporation shall be approved by the charter board. (G. S. 1945 Supp. 17-4201 to 17-4207, incl.) In fact, G. S. 1945 Supp. 17-4202 provides that any corporation may, from time to time, when and as desired, amend its articles of incorporation as to the various matters indicated therein, which include increase of its capital stock. G. S. 1945 Supp. 17-4203, however, provides that articles of incorporation as so amended, changed or altered, shall contain only such provisions as it would be lawful and proper to insert in the original articles of incorporation. G. S. 1945 Supp. 17-4204 prescribes the necessary action of the board of directors of a corporation to effect an amendment and G. S. 1945 Supp. 17-4205, in substance, provides that upon the filing of a certificate of amendment, executed as previously directed, in the office of the secretary of state and the recording of a certified copy thereof in the office of the register of deeds of the county in which the original articles of incorporation are recorded, the articles of incorporation shall be deemed to be amended accordingly.
In view of the fact the legislature when enacting G. S. 1935, 17-1608 of the marketing act intended to make the filing and approval of amendments under that act conform to the general corporation law, and in view of the fact the requirement of approval of amendments by the charter board under the general corporation law was expressly repealed, and in view of the further fact that the present general corporation code does not require the approval of amendments by the charter board, we think it inconsistent with the legislative intent to hold it was intended an amendment of plaintiff’s articles of incorporation should be required to' have the. approval of the charter board.
Defendants contend the cooperative marketing act deals particularly with amendments of charters' granted under that law and that it, rather than the general corporation code, should be held controlling with respect to amendments of plaintiff’s charter. Decisions are cited in support of that general principle of law. Except for the conclusion previously reached with respect to the legislative intent defendants’ contension would be sound. The general principle contended for, however, cannot be applied in derogation of the legislative intent.
Defendants also rely on the provisions of G. S. 1935, 17-1628 of the cooperative marketing act which provides:
“The provisions of the general corporation laws of this state and all powers and rights thereunder shall apply to the associations organized hereunder, except where such provisions are in conflict with or inconsistent with the express provisions of this act. It shall not be necessary for corporations organized under this act to file the affidavit required by section 17-214 of the Revised Statutes of 1923.”
The trouble with defendants’ contention is that the provisions of the present general corporation code with respect to amendments are not in conflict with or inconsistent with G. S. 1935, 17-1608 of the marketing act when the latter statute is interpreted in accordance with the legislative intent previously indicated.
While, as already stated, we are now concerned only with the subject of amendments, it is of some value in attempting to ascertain'the legislative intent to observe also the provisions of G. S. 1935, 17-1607 of the cooperative marketing act which prescribes the procedure for obtaining an original charter. . The pertinent portion thereof reads:
"The application for charter must be subscribed by the incorporators and asknowledged by them before an officer authorized by the law of this state to take and certify acknowledgment of- deeds and conveyances; and shall be filed in accordance with the provisions of the general corporation law of this state.” (Our italics.)
It would, thus appear the legislature intended to make the procedure- under the cooperative marketing act, both with respect to the application for a charter and for amendments thereto, conform to the' general corporation law of this state.
Defendants concede the cooperative marketing act contains no requirement that the original charter of a cooperative organized thereunder must be approved by the charter board. As already stated that act contains no limitation or restriction relative to the amount of capital stock'of a. corporation organized pursuant thereto. It would indeed constitute an anomaly to conclude the plaintiff' association could have obtained its original charter with a capital stock of $12,000,000, or any other amount, without the approval of the charter board, but that it could not amend its charter to increase its capital stock to $12,000,000 without the approval of the board.
Having determined the charter board is without power to disapprove an .amendment we obviously need not determine what matters it might consider in determining whether it would approve or disapprove an amendment, if it had such power.
This brings us to the function of the secretary of state in whose office the certificate of amendment must be filed. Are his duties solely ministerial? In considering that question in Kansas Milling Co. v. Ryan, 152 Kan. 137, 102 P. 2d 970, we held:
“Under the general corporation code (Laws 1939, ch. 152) the duties of the ■secretary of state in receiving, filing and certifying articles of incorporation or amendments thereto are not strictly ministerial.” (Syl. ¶ 1.)
In a carefully prepared opinion elaborating this statement of law, we said:
■ “It may be conceded there is no specific provision of the general corporation code that requires either the 'original articles of incorporation or any amendment thereto be approved by the secretary of state before being filed. We see no fundamental difference with respect to the duty of the secretary of state whether the filing, etc., involves the original articles of incorporation or an amendment. Certainly, where either is tendered to the secrtary of state for filing, he has a duty to see that the articles of incorporation contain the information required by section 11 of the act, i.e., the corporate name, location of registered office, name of resident agent, the nature of the business, etc., or, if an amendment of those particular things, that the effect, is not to eliminate any. To determine whether there has beon compliance in the above particulars, or that the articles of incorporation have been duly executed, may be said to be matters of form. But we do not believe his duties end there. There are certain matters of substance to be considered. The articles of incorporation or of any amendment pertaining thereto must show that the purpose of thé corporation is to engage in a business in which natural persons might lawfully engage. If it were affirmatively shown by the articles or any amendment that the contrary was true, we do not believe the secretary of state lacks power to refuse to file. Under section 24 of the corporation code there are restrictions on the corporation purchasing its own stock; under section 26 loans to officers are prohibited; under section 80 payment of dividends is limited, and there are many other provisions regulating or restricting powers If the articles of incorporation, or any amendment is absolutely at variance with the statutory provisions, is the secretary of state impotent? Must he file the articles or the amendment, leaving to the attorney general the duty to challenge regularity and legality? We do not think so. We do not mean that the secretary of state is to act as an arbiter or judge of the legal sufficiency of the articles of incorporation or any amendment, and that they are subject to his approval before being filed, but only that where it appears from the face thereof that required statements of fact and information are not included or where included make provisions for the exercise of power contrary to express or implied provisions of law, then the secretary of state has the power and it is his duty to refuse to file the articles of incorporation or the amendment thereto, as the' case may be. If the secretary of state is in error in concluding either that the names the plaintiff desires to have incorporated in its articles of incorporation by the proposed amendments are not trade names, or that if they are, the general corporation code does not contemplate or authorize their inclusion in the articles of incorporation, then the writ of mandamus should issue.” (p. 141.)
The certificate of amendment in the instant case is conceded to be legally sufficient. We have no hesitancy in saying the secretary of state had no power to investigate, consider and determine the legal effect of matters entirely collateral and foreign to a legally sufficient certificate of amendment, which matters, if true, might or might not compel ouster of the corporation, in determining whether he would file the amendment. This is doubly true where the amendment, as here, pertains solely to an increase of plaintiff’s capital' stock.
The costs of this proceeding are taxed against the defendants. The secretary of state is directed to file the requested amendment in order that it may become a part of plaintiff’s articles of incorporation.
The writ of mandamus is allowed.
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The opinion of the court was delivered by
Smith, J.
This was a proceeding for the determination of rights under a will. The trial court found in favor of the administrator and against one who claimed to be a devisee under the will. She has appealed.
The action originated in the probate court. Some procedural steps were taken before the petition to determine rights was filed. They will be noticed now. The will was offered for probate by Andrew Marteney, who alleged that he was an heir of deceased. The names of all his known heirs were set out, also that of his widow and of Rubah L. Brunnert Evans, who was the same person as Rubah L. Brunnert, who was named as executrix in the will. The petition alleged that she was not related to the decedent, and that it was to the best interests of the estate that Andrew Marteney be appointed administrator with the will annexed. There was no objection and the will was duly admitted to probate, and Marteney was appointed administrator with the will annexed.
The will first gave Ella M. Marteney, his widow, an- undivided one-half interest in certain described property. Article 2 of the will was as follows:
“I hereby give, devise and bequeath to Rubah L. Brunnert the other undivided one-half interest in said property upon the terms and conditions hereinafter set forth, together with all my personal property.
“Under date of May 18, 1939, I entered into a contract with Rubah L. Brunnert whereby she agreed' to take care of me during my old age and to pay my funeral expenses and expenses of my last sickness. The gift and devise herein made is upon the condition that she comply with said contract. If she does not do so, this clause should be void and the property herein given shall go to Ella M. Marteney.”
The petition to probate the will was filed August 5,1944. On August 7, 1944, Rubah L. Brunnert Evans filed a petition in probate court wherein she acquiesced in the terms of the will and agreed, to perform the conditions required of her, that is, payment of the funeral expen ses, and she petitioned the court to make a finding upon the closing of the estate that she w.as entitled to the benefits under the will.
This petition does not seem to have been acted upon but on December 8, 1944, the administrator filed the petition upon which these proceedings are based. In this petition he first referred to the terms of the will, which we have already set out. He then pleaded that the will stated the bequest was made pursuant to a contract entered into May 19, 1939; that a controversy had arisen as to the extent of the personal property of the deceased, and that a controversy existed between the heirs at law of the testator and Rubah L. Brunnert Evans as to whether or not she had fulfilled the conditions of the devise; that it was necessary to sell personal property in order to meet obligations; that the selling of the personal property involved the rights of Rubah L. Brunnert Evans and the heirs at law of the deceased; that the funeral expenses and expenses of the last illness of deceased should be paid but the administrator could not determine whether the estate was liable for the payment thereof or whether under the terms of the will Rubah L. Brunnert Evans was liable, and that a determination should be made of the terms of the will in advance of the closing of the estate.
In answer to this petition, Mrs. Evans admitted.the terms of the will and that she was to take care of testator during his last sickness and to pay the funeral expenses and expenses of his last sickness. She stated that she had fulfilled her contract with the exception of paying the funeral expenses, which she stood ready and willing to pay and would pay when advised of the amount or when instructed by the court to pay them.
The prayer of the answer was for a judgment establishing the will and decreeing that a half interest in the real property and all the personal property of deceased be set aside to her. The probaté court denied the claims of Mrs. Evans. She appealed to the district court.
When the case came on for hearing, counsel for Mrs. Evans informed the court that she had offered to pay decedent’s funeral expenses and expenses of his last sickness and thereupon in open court offered to pay the same on the court’s instruction.
The district court found first that the will was duly admitted to probate and set out the paragraphs with which we are concerned. The court then stated that it had held during the trial that the burden of proof was upon the appellant to establish that she had performed each and all of the conditions' on her part to be performed before she was entitled to the legacy and .devise. The court made the further findings of fact and conclusions of law:
“V.
“Said Rubah L. Brunnert failed to prove, by a preponderance of the evidence that she took care of the decedent during his old age and the court finds that she' did not pay the funeral expenses as contemplated in the legacy and devise above quoted. . That on the trial, however, by her attorney, she made an oral tender into 'court but did not make the tender good by offering the amount of money into court and that said tender had never been completed by a payment of the money into court; that the decedent died suddenly of a heart attack and there were no expenses of last sickness.
“VI.
“That at the time of his death said decedent was about 69 years of age living by himself in said city, and that said Rubah L. Brunnert lived in said oity but at some distance, perhaps three miles, from where decedent was living and died.
“VII.
“That said alleged contract of May 18th, 1939, as mentioned in said will, was oral and was not properly proved by the claimant, Rubah L. Brunnert, to the satisfaction of the court.”
The conclusions of law were as follows:
“I.
“That the conditions of Article'll of said will was a condition precedent to the vesting of any right, title or interest in and to the property mentioned therein.
“II.
1 “That the said Rubah L. Brunnert in failing to prove to the' satisfaction of the court the performance of the conditions mentioned in Article II, is not entitled to any right, title or interest in and to the property mentioned in sections I and II of said will.”
Mrs. Evans filed motions for a new trial and for substitute findings of fact and conclusions of law. All her motions and objections were oyerruléd and judgment was entered that she was not entitled to any interest in the property of deceased.
Appellant’s specifications of error are that the trial court erred in overruling her demurrer to the administrator’s evidence, in ruling that she had. the burden of proof, in admitting incompetent testimony, in basing the judgment on incompetent, irrelevant and immaterial testimony, in refusing competent testimony offered by appellant, in requiring appellant to prove a contract which the administrator admitted in his pleadings, in refusing to make findings of fact and conclusions of law as requested by appellant, in making erroneous findings of fact and conclusions of law, in overruling appellant’s objections to findings of fact and conclusions of law and refusing her motion for additional and substituted findings and conclusions, in rendering judgment for the administrator and in overruling her motion for a new trial.
So that the legal questions involved may be better understood we shall set out some facts about which there is no serious dispute.
Deceased was sixty-nine years old when he died August 1, 1944. He made his will on July 25, 1939, or when he was sixty-four years old, the contract of which he spoke in-his will was made May 18, 1939, or about two months before he made his will. He died suddenly from a heart attack, so there was no last illness. The real property to which he referred in his will was an apartment house. This apartment house contained nine apartments, including the one in which testator was living when he died. He could not read or write but could sign his name. About 1936 he hired appellant to manage these apartments; about 1938 he became estranged from his family and moved next door to the apartment house and made appellant’s apartment his office during the daytime; in May, 1939, appellant, went to work elsewhere and moved out of the apartment house; she continued to work for deceased after hours; she went back and forth; she never went back to live in the apartment house after she went to work for Mrs. Judd. At the date the will was made and on the date of the contract spoken of in the will she was working for Mrs. Judd and not living at the apartment house. About November, 1939, the testator requested her to put in her full time working for him, which she did. She continued to work full time for him until June, 1941, during that time testator paid her for her work; in February, 1941, he loaned her the money to buy the place where she was living at the time of his death and helped her in various ways, for which she paid him. In June, 1941, appellant married Doctor Evans, a friend of the decedent, and after that her social relations with testator were • cordial.
At'the trial appellant testified that after her-marriage and until the death of the testator she continued to help him clean the apartments after vacancies, clean and redecorate his own apartment, make out rent receipts, keep his books and tax returns, conferred and advised with him, assisted him generally and did whatever he requested and received no pay from the testator during this period.
At the time of his death deceased had accumulated considerable other property besides the apartment house.
Appellant desired to administer the estate as executrix under the will but withdrew on the advice of the attorney for the administrator; the attorney for the administrator prepared and filed the petition, whereby she .acquiesced in and consented to the terms of the will and offered to pay his funeral expenses. No claims for expenses of his last illness or funeral expenses were ever filed in the probate court and evidence as to the amount thereof was first offered in the district court.
In the brief of appellant filed in this court counsel make five points. They are as follows:
“I. The testator alone had the right to object if there was any breach or nonperformance of any conditions which he provided for his benefit during his lifetime, and he is presumed to have been satisfied with the performance of those conditions when he had it within his power at all times prior to his death to assert nonperformance or dissatisfaction by revoking his will, and did not do so.
“II. The burden of proof is on those who assert the happening of those conditions which the testator states are necessary to avoid the gift made under his will.
“III. It was error to require the respondent, appellant herein, to prove a contract with the testator when such contract and its terms are set out by the testator in his will, and more particularly when such contract is admitted by the administrator in his pleadings and not denied by any parties to this proceeding.
“IV. It was error to require the appellant to tender the amount of funeral expenses by payment of money into court when the amount of such expenses had never been filed or presented to her nor to the court prior to trial in the District Court, the amount and correctness of which, under such circumstances, would necessarily be an issue to be determined by the court in that trial.
“V. If the respondent, appellant herein, had any obligation to prove performance or satisfaction by the testator with her performance of any condition of his contract, she offered ample evidence thereof, which was in no way contradicted or refuted.”
Appellant first argues that the trial court erred in holding that the burden was on her to prove that she had performed the conditions of the contract to “care for” testator during his “old age.”
Her argument on this question is based on the theory that the testator alone had the right to object if there was any breach or nonperformance of any condition which he provided for his benefit during his lifetime and he is presumed to have been satisfied with the performance of these conditions when he had it within his power at all times prior to his death to assert nonperformance or dissatisfaction by revoking his will and he did not do so.
It should be remembered that at this time we are dealing with the condition of the bequest that Mrs. Evans would “care for” the testator during his “old age.” There were other conditions which will be dealt with later in this opinion. The bequest to Mrs. Evans was at best only a conditional one. The testator, when he made the contract, was taking what precautions he could against an old age with no one to care for him. The question of whether old age was upon him when he died was one for the trial court to settle. In the first instance when the trial court found that Mrs. Evans had failed to establish by a preponderance of evidence that she took care of the decedent during his old age, it found in effect that old age had arrived for the testator before his death. The administrator simply set out the will, stated that a controversy had arisen and asked for instructions. Appellant answered that she had fulfilled her contract. The pleadings thus drawn made an issue of fact for the trial court. Under such circumstances, we have no difficulty in applying the rule set out in 13 C. J. 762, section 953. There it is said:
“A party alleging performance of a contract as a basis for recovery has the burden of proof, when such fact is put in issue. So where defendant pleads performance he assumes the burden of proof.”
Once the issue was made whether Mrs. Evans had fulfilled the conditions of the contract the inquiry covered a broad field. Neither party was denied full opportunity to make a full and complete showing on this issue. We find no prejudice to appellant in the ruling that the burden of proof was on her to establish the performance of the conditions. The administrator did not plead that ap-. pellant had not performed the conditions. He merely pleaded the situation and asked for instructions. She pleaded performance and thereby assumed the burden.
Appellant next argues that it was error to require her to prove the contract with the testator when such contract and its terms were set out by the testator in his will, and the contract was admitted by the administrator in his pleadings and not denied by any of the parties.
This argument is well taken. The trial court found that “said alleged contract of May 18th, 1939, as mentioned in said will, was oral and was not properly proved by the claimant, Rubah L. Brunnert, to the satisfaction of the court.” Up to that point in the trial, the judge of the trial court seems to have been the only person to question the fact of whether the contract was made. The testator, the person above all others who should have known, did not ques tion it because he made it the basis of the bequest to Mrs. Evans. The administrator did pot dispute it as witnessed by his petition where he referred to it. No reason appears why the trial court should have required any proof or made any finding on this issue.
Appellant next argues that it was error to require her to tender the amount of funeral expenses into court when the amount of such expenses had never been presented to her nor to the court prior to the trial in district court. It will be remembered that the trial court after finding that appellant failed to prove by a preponderance of evidence that she took care of the decedent during his old age, went further and found that she did not pay the funeral expenses as contemplated in the legacy. The court did find, however, that she made an oral tender into court but did not make the tender good by offering the money into court. In the conclusions of law the court concluded that appellant in failing to prove the performance of the conditions was not entitled to any rights -under the will. Just how much weight the trial court attached to the failure of appellant to pay the funeral expenses or make the tender of the money into court does not appear. The trial court might well have found that appellant did more than to make an oral tender of the amount of the funeral expenses. Two days after the petition to probate the will was filed she filed a petition in probate court in which she stated she agreed to pay the funeral expenses. There never was a time during the entire proceedings when there was any doubt about appellant’s willingness to pay the funeral expenses if her contract with testator should be upheld. It was error for the trial court to require the actual tender into court of the amount of the funeral expenses as. a condition precedent to Mrs. Evans taking under the' will.
Appellant next argues that if she had any o'bligátion to prove performance of her contract or satisfaction of the testator with it, she offered ample evidence thereof, which was hot contradicted or refuted.
In this contract Mrs. Evans was to “care for” testator in his “old age.” These are two terms which might receive different interpretations under different circumstances. What did the parties mean by “care for”? What did they mean by “old age”? When conducting a trial involving such terms a trial court must be vested with broad discretion. Here the inquiry was into just how much Mrs. Evans did for testator during the -last years of his life. There was testimony both ways-on that. The trial court was not.obliged to believe any of it even though not contradicted. Under our often-stated rule that we will not disturb a finding’ of fact where it is supported by substantial evidence we find ourselves unable to review the finding of fact to the effect that Mrs. Evans failed to prove by a preponderance of the evidence that she took care of the decedent during his old age.
Ordinarily the foregoing finding would be sufficient to support the conclusion of law that Mrs. Evans was not entitled to take under the terms of the will. There are'other circumstances here, however. In i^he first place, the trial court had the erroneous idea that appellant must prove the contract since it. found she did not prove it. Under all the facts and circumstances and from an examination of the entire record we are unable to ascertain just how much this erroneous theory influenced the trial court in reaching the decision on the general result.
The same may be said as to the finding of the trial court as to the funeral expenses.
There is one other matter we must notice. The administrator offered as a witness a woman who testified that she had been private secretary to her husband who had operated a detective agency. Over the objection of appellant she was permitted to testify that testator had come to their office and asked them to shadow a woman who was working for him and with whom he had quarreled because she was running around with a married man and that he said if she did not quit running around with this married man he was going to give her up. The implication in this evidence was that the woman he wanted shadowed was the appellant.
The testimony did not tend to' prove or disprove any issue in the case. It was highly prejudicial and should not have been admitted.
One of the grounds for which a new trial was asked was erroneous admission of evidence.
The judgment of the trial court is reversed with directions to grant the appellant a new trial, in accordance with the views expressed herein. ■
Hoch, J., not participating.
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The opinion of the court was delivered by
Wedell, J.
This action originated in the probate court.. It was filed by Alden Besse, son of Alexander Besse, deceased, whose will had been probated and whose, estate was being administered by Samuel J. Shriver, executor.
Insofar as now material the son’s petition, in substance, alleged: He was a partner with decedent in the machinery business; petitioner had been engaged in the practice of .law at Pittsburg and his father was engaged in the machinery business; on July 25, 1940, they entered into a written “temporary contract” which was signed by the decedent and the duplicate was signed by petitioner; on the same date they entered into an “Agreement” for a three-year period which was made a part of the temporary contract, copies of which alleged agreements were attached; the first agreement provided for. a trial period of one month and for notice by either party in the event the trial proved unsatisfactory; if no such notice was given the second agreement was to become effective; no notice was given and the parties proceeded under the agreement as partners until the father’s death on May 12, 1944; under the agreement petitioner was entitled to be decreed the owner of various propérties in Pittsburg denominated in the .agreement as the “small rent prop erty” without further description (twelve parcels were designated in the petition); a machinery warehouse was purchased by the father in his own name out of partnership assets after the formation of the partnership; the purchase of the warehouse was submitted to and approved by petitioner; it became a part of the partnership business; had been recognized as partnership property and should be included in the partnership administration.
Paragraphs 8 and 5 of the petition also alleged:
“At the time of the death of the deceased there had been credited on the books of the deceased to this petitioner, as profits due this petitioner as a partner, out of said machinery business which had not been paid to this petitioner at the time of the death of the decedent, the sum of $5,482.99, which is justly due and owing to this petitioner,'and to which there are no offsets, together with interest thereon at the rate of 6 per cent per annum from the date of the death of the said deceased on May 12, 1944.”
“In accordance with the terms of said partnership agreement, the net profits of the business were divided or credit for the partnership profits given to this petitioner and to decedent equally up to the time of the death and upon the death of the deceased this petitioner under the law became and is entitled to administer the partnership affairs, and hereby offers to give bond as provided by law for the administration of the partnership affairs.”
The prayer of the petition, in substance, was: That the machinery business as it existed at the time of his father’s death be decreed to have been owned in equal partnership; that the warehouse be included in the partnership assets; that the “small rent property” be' decreed to be owned by petitioner; that an accounting be had as to the rentals therefrom and the expenses thereon since the death of the father and that the personal representative be ordered to execute deeds of conveyance to the petitioner covering the “small rent property”; that an accounting be had as between the partnership estate and the general estate relating to the transactions in the partnership affairs subsequent to the death of the deceased; that the petitioner’s claim for $5,482.99 be allowed as against the general estate together with interest at six percent per annum from and after the death of his father on May' 12, 1944.
As previously stated, the temporary contract and the agreement bear the same date. The attached copy of the temporary contract evidenced only the signature of the decedent. The attached copy of the agreement did not evidence the signature of either party.
The executor and Hattie B.esse, widow of decedent, filed separate answers to the petition in the probate court. The widow denied decedent ever executed or agreed to the so-called “partnership agreement” attached to the petition and alleged she did not know whether decedent ever executed the so-called “temporary agreement” and asked that petitioner be put upon strict proof of its execution. Each of their answers contained a general denial of averments of the petition and the executor also alleged he did not know whether the decedent executed the alleged instruments, and requested that petitioner be required to make strict proof of such execution.
Upon trial of the issues the probate court concluded: Petitioner and decedent were not partners in the machinery business; petitioner owned no interest in that business; petitioner did not own the “small rental property” and that the executor should not make deeds of conveyance covering that real estate; petitioner’s claim in the sum of $5,482.99 together with interest at six percent per annum from and after May 12, 1944, was a proper claim against the separate estate of Alexander Besse and should be allowed as a fourth-class claim.
From that judgment the executor, the widow and the petitioner all appealed to the district court. In the district court case No. 36,765, involving the petition for partnership administration, and case No. 36,780, involving the separate estate of the decedent against which the claim of petitioner was allowed, were consolidated.
The parties stipulated that all pleadings, files and exhibits, including a transcript of the oral testimony adduced in the probate court, should be used in the district court but that any party was also privileged to introduce oral testimony. The trial was had on such transcript from the probate court together with oral testimony of the executor touching the issues of the existence of a partnership and the collection of rents from the small rental properties.
The trial court made findings of fact and conclusions of law. We deem it unnecessary to set out the extensive findings of fact. They are reflected in the conclusions of law made pursuant thereto. The trial court, in substance, concluded: The temporary agreement was signed only by the decedent; the agreement containing the terms of the alleged three-year contract was signed by neither party; the operations of the machinery business by the father and son were not based on the alleged written partnership agreement but were based on some mutual understanding and the acts of the parties; Alden Besse was an equal partner with his father in the machinery business; the father at his death was the sole -and individual owner of the real estate referred to in the alleged agreement as the small rent properties; the son, at the father’s death on May 12, 1944, was entitled to his claim for profits of .the partnership business in the sum of $5,482.99 and the amount was a claim against the partnership estate; the son should be permitted to give bond agreeable to the provisions of the law for the administration of the partnership affairs; an accounting should be had relative to all transactions between the general estate of the decedent and the partnership estate subsequent to the death of Alexander Besse; if the parties could not in sixty days agree with respect to such accounting the court retained jurisdiction to make all necessary orders in relation thereto.
No agreement on the accounting was reached.
In case No. 36,765 the executor, has appealed and Alden Besse, the son, has cross-appealed. In case No. 36,780 Hattie M. Besse, the widow, has appealed. The cases have been consolidated on appeal. The contentions of the parties are not segregated under the respective cases but are treated as though only one case were before us. We shall treat them accordingly. In the interest of simplicity and clarity we shall, except where otherwise necessary, refer to the parties as the son, the widow and the executor.
The first question presented is whether this court will review and weigh the evidence pertaining to each of the issues presented on appeal. It is well established that when the evidence is written, documentary in character or in the form of depositions or transcripts, it is the duty of this court to decide for.itself what the facts establish, substantially as it would in an original case. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103, and earlier cases therein cited.) The same rule applies where the only oral testimony adduced has little, if any, bearing on the principal question presented. (In re Estate of Kemper, supra, p. 734.)
As we view the record the above rule cap safely be applied to only two points in this case. One pertains to the claim for a money judgment the son filed in the probate court. The pleadings were not changed in the district, court. The son’s claim in the probate court was clearly based on the contention that profits from the partnership estate were due to him at decedent’s death in the specific sum of $5,482.99. He also sought an accounting on all affairs between the general estate and the partnership estate subsequent to decedent’s death. He does not claim any oral testimony was adduced in the district court which tended to disturb the claim he asserted for profits due him from the partnership estate at the time of its termination. With respect to that particular claim we shall, therefore, consider only the transcript of the record from the probate court and weigh the evidence as though this court had original jurisdiction!. Having done so our conclusion is that all the son can recover as partnership profits is the amount he claimed to be due at its termination and that he cannot now reach back prior to decedent’s death and recover a larger sum as profits on the theory they were improperly calculated. From the record before us it would seem quite doubtful whether an accounting covering the entire period of his relations with his father, if permitted, would be rewarding but with that point we are not now concerned and'express no view.
We think the trial court properly directed an accounting of all transactions between the general estate of the decedent and the partnership estate subsequent to decedent’s death.
Can we on the transcript of the record from the probate court alone decide whether a partnership actually existed between the father and son in the machinery business and whether decedent treated the real estate mentioned in the alleged contract as his own individual property? We think not. The executor had served decedent in many office capacities in relation to the machinery business. He was also decedent’s bookkeeper for-many years. He testified at length in the district court concerning the methods decedent employed in conducting various aspects of the machiijery and other business both prior to July 25, 1940, the date of the alleged partnership agreement, and until his death.
The son argues- the executor’s evidence really constituted merely a repetition of his testimony in the probate court as disclosed by the transcript. Assuming, without deciding, that is true, the parties expressly stipulated they reserved the right to introduce oral testimony in the district court. Under that stipulation the testimony of all witnesses in the probate court might have been reproduced orally in the district court; Had that been done would this court be privileged to consider only the testimony of witnesses as contained in the transcript of the record from the probate court? We do not think so. Nor can we in the instant case say this court has had the same opportunity as the district court to see the witness who did testify, to observe his demeanor on the witness stand and to determine what weight should be accorded to his testimony.
It follows if there is substantial competent evidence which supports, or tends to support, the findings of the district court with respect to the existence of the partnership in' the machinery business and its findings with respect to the real estate involved those findings will not be disturbed. (In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359.)
As previously stated the trial court found the temporary, or trial, contract was signed only by decedent and that the three-year partnership agreement, to which the first agreement referred, was signed by neither party; that an equal partnership existed in the machinery business; the partnership in the machinery business, however, was hot based on the alleged written contract but on some mutual understanding and the acts of the parties. There is ample testimony- to support these findings pertaining to the partnership in the machinery business. The only real estate mentioned in the unsigned partnership agreement was the undescribed property referred to in that instrument as the “small rent property.” It appears from the evidence the property so denominated consisted - of twelve pieces of real estate which were rental properties. The court having found the alleged written agreement was not signed by either party and was not the basis of the partnership agreement, it follows the son could not obtain title to that real estate upon the basis of such contract or upon the theory of having acquired an equitable title thereto by reason of the fact the parties had actually carried out the terms of such partnership contract. Under these circumstances Gordon v. Munn, 87 Kan. 624, 125 Pac. 1, relied on by the son as authority for the contention he acquired an equitable title to the rental properties is not controlling. The court further found no instrument conveying such properties from, the father to the son was made. There was also ample testimony to support the finding the father handled the rental properties as his own until his death. The court concluded as a matter of law:
“Besse on May 12, 1944, the date of his death, was the sole and individual owner of the real estate referred to as the' small rent properties.”
We think the findings and judgment relative to the rental properties must stand.
What about the warehouse for the machinery business? We find no reference to it in the oral testimony of the executor in the district court. Concerning that property we shall, therefore, reach our conclusion on the transcript of the record from the probate court. The warehouse was not mentioned in the alleged written contract. It was purchased subsequent to the formation of the partnership in the machinery business and out of partnership funds. Prior to its purchase it was rented by the decedent as a warehouse for his machinery business. The title to the warehouse, like the title to all other property of every other business with which decedent was in any manner •connected, was taken in his own name. He followed that custom with respect to partnership relations with other persons.
In the joint brief of the executor and the widow we are reminded the son on cross-examination testified:
"Q. Was that purchased out of machinery funds, that building? A. Yes, sir, that was purchased out of machinery funds. Of course the funds weren’t' kept separate, it was all thrown in one hopper, but it was purchased out of the machinery business, what rent money came' in and other things.”
The mere fact income from other sources was deposited in the general account from which the warehouse was purchased does not mean the warehouse was not purchased with funds of the machinery partnership. Moreover, there is not the slightest question concerning the fact the warehouse was expressly purchased for the machinery business and was used for that purpose. It constituted a portion of the machinery business and the partnership assets. There was much, and persuasive, testimony that decedent considered and advised others his son had a one-half interest in that partnership business. The district court concluded the son was an equal partner with decedent in the machinery business. The court did not exclude the warehouse as a partnership asset. In order, however, to avoid any possible later confusion it is hereby directed that in the accounting the warehouse building be treated as a partnership asset.
The judgment is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Parker, J.
The defendant was charged with grand larceny (G. S. 1935, 21-533). At the close of a spirited trial a jury found him guilty of that offense. Later, his motion for new trial having been denied, he perfected this appeal.
Appellant first contends the verdict is'not sustained by the evidence and is contrary to law. There is, however, no occasion for a full recital of the facts disclosed by the record. Appellant did not take the witness stand and offered no evidence on his own behalf. The complaining witness testified that on November 3, 1945, while standing in a large crowd at the Missouri, Kansas & Texas Railway celebration at Parsons he felt some one fooling around with his hip pocket. He looked back over his shoulder and observed his pocketbook, which contained $37.13 and had been in his left hip pocket, in appellant’s right hand. Appellant attempted to pass the witness but when seized by the latter dropped the pocketbook to the ground. Standing alone, the evidence just related sustains the verdict. The rule often stated and recently reiterated in State v. Jeffers, 161 Kan. 769, 173 P. 2d 245, is that where there is any sub stantial competent testimony to support a verdict it will not be disturbed on the ground of insufficiency of the evidence. Long ago, in State v. Tofte, 59 Kan. 753, 54 Pac. 1062, we decided that proof of larceny from the person will support a conviction in a prosecution instituted under the provisions of what is now G. S. 1935, 21-533, notwithstanding another provision of the statute, now G. S. 1935, 21-2422, making it a felony to unlawfully pick the pocket of another or take personal property from his person.
It is also contended that the trial court erred in that it received a communication from the jury through the bailiff and sent a message back by him to the jury in the defendant’s absence. We need not labor the facts on this point. Appellant claims the court advised the bailiff and it in turn advised the jury that it must find the defendant guilty of grand larceny or nothing. The trouble is there is no evidence to sustain the claim as made. Unquestionably the' jury did make some inquiry about the difference between grand and-petty larceny but the record reveals, beyond peradventure of a doubt, the court sent back word that question would have to be determined from the evidence and the instructions. The answer made to the inquiry cannot by any process of reasoning be regarded as an independent statement of law and was entirely proper under our decisions construing the statute requiring a written charge in criminal cases.
In the early case of State v. Potter, 15 Kan. 302, cited and approved in State v. Howland, 157 Kan. 11, 14, 138 P. 2d 424, we held:
“The statute requiring a written charge to the jury in criminal offenses is imperative, and the failure to comply with it is an error compelling a reversal.
“The mere fact that an oral communication has passed from the court to the jury is not of- itself proof that the statute has been disregarded. But the court may properly make oral statements to the jury in reference to the form of the verdict, the manner in which the trial has been conducted, the behavior of the jury or counsel or parties, or any other oral statement which is not fairly and strictly a direction or instruction upon some, question or rule of law involved in or applicable to the trial, or a comment upon the evidence.
“Where a juror propounds a question to the court, it may make a direct answer, without reducing the same to writing, provided in so doing it does not make an independent statement of a rule of law. In other words, where the question of the juror is the full statement of the rule, and the answer is no more than an affirmation or denial, such affirmation or denial need not be reduced to writing before it is given.” (Syl. ¶¶ 5, 8, 9.)
Another error charged and strenuously argued is that the trial court admitted in evidence illegal and prejudicial testimony as to previous arrests of defendant. This claim relates to the testimony of one Lester Baxter, a special agent for the Missouri, Kansas & .Texas Railway Company, who arrested the appellant at the instance of the complaining witness. In the course of his examination Mr. Baxter had stated that appellant gave his name as John Doe when interrogated by him on the date of his arrest. He was then asked how he knew appellant’s name was not John Doe. His answer to the question was: “Because he had stated a different name at police headquarters in Kansas' City.” Counsel objected to the answer and now complains because the court permitted it to stand. We fail to. see where it tended to prove any issue in the case. For that reason it was immaterial and might well have been stricken. However, failure, to sustain the objection does-not in our opinion warrant the granting. of- a new trial. The statute (G. S. 1935, 62-1718) directs us to disregard technical errors or defects not prejudicial to the substantial rights of the parties. In compliance with its terms judgments have been affirmed in spite of' technical errors so frequently that citations of authority are hardly necessary. (See Hatcher’s Kansas Digest, Criminal Law, § 439.) As recently as State v. Collins, 162 Kan. 34, 174 P. 2d 126, we held:
“Every error does not necessarily affect the substantial rights of a party and on appeal, under the directions of G. S. 1935, 62-1718, the supreme court of this state must give judgment without respect to technical errors or defects, or to exceptions which do not affect substantial rights of the parties.” (Syl. H 5.)
Appellant’s contention might be entitled to serious consideration if the evidence about which he complains affected the verdict. Unfortunately for him, we find nothing in the record indicating it had that result. As a matter of fact, members of the jury, who were subpoenaed, appeared and testified at the hearing of the motion for a new trial, were not interrogated on the point' and nowhere in their testimony is there a suggestion or inference that s-uch evidence was even considered by any one of them in reaching the verdict. In that situation we cannot assume appellant’s substantial' rights were affected. To do so would violate the plain mandate of the statute.
There are numerous other errors assigned by appellant as grounds for reversal of the judgment but it will not be necessary or proper to mention or discuss them in this opinion. Some have no support in the record while others are neither argued nor briefed. The judgment is affirmed.
Hoch,' J., not participating.
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The opinion of the court was delivered by.
Thiele, J.
The question presented by this appeal is the' validity of a claimed antenuptial contract.
Under date of July 14, 1941, Alexander Besse made his last will and testament by the terms of which he gave specific devises to his daughters, Lavon Besse and Frances Howland, and to his grandson, W. B. Howland, a specific legacy to his son, Harold, and the remainder of his real estate (without description) and certain personal property to his son, Alden. .'The will did not contain a general residuary clause. On November 26, 1943, Alexander Besse and Hattie Betts were married. Shortly before the marriage ceremony was performed they executed an instrument in writing hereafter referred to as an antenuptial contract, and which will be more fully referred to later.
Alexander Besse died on May 12, 1944, and shortly thereafter Samuel J. Shriver, named in the will as administrator, filed a petition in the probate court for the probate of the will. Although not in the order here stated, the petition set forth the death of Alexander Besse and that he left a will, leaving named persons as legatees and devisees; that he was survived by certain-named persons as his heirs at law, naming his four children and Hattie M. Besse, his widow, subject- to the terms and provisions of a certain antenuptial contract, a copy of which was attached to the petition and which is as follows:
“Pittsburg, Kas 11/25/1943
“This agreement, before marriage between A. Besse and Hattie Betts to govern properties owned by them.
“Hattie Betts shall have her property, furniture and other chattels of her own.
“Also will accept a quitclaim deed of 520 W. Kansas and furniture, and A. Besse shall have the use of it during his lifetime and pay taxes.
“A. Besse to reserve all properties in Pittsburg; Picher and real estate and all machinery — personal properties. — owned by him.
“Agreed this 25th day of Nov. 1943.,
“A. Besse “Hattie Betts”
Hattie M., Besse filed her .answer and cross petition in which she alleged she was the widow of Alexander Bésse; that the' alleged will was executed prior. to her marriage and she knew nothing about its execution; that’ she denied entering into any valid ante-nuptial contract with Alexander Besse, had not seen the original document and did not know whether her signature thereon was genuine; that if her signature was affixed to the original agreement it was obtained by fraud. Then follows detailed, allegations of fraud. As the evidence is to be later reviewed, these allegations are here omitted. She further alleged that the antenuptial agreement, even if valid, did not bar her -right of inheritance, and that in the event the will of Alexender Besse was admitted to probate, she declined to take under its provisions and elected to take her share of his estate and such other allowances as may be allowed to her, under the law. The prayer was that the antenuptial contract be held for naught and that she be allowed such share and allowances as are by law allowed the widow of a deceased person.
On June 9, 1944, the probate court, upon hearing, admitted the will to probate and appointed Shriver as the executor, and continued the hearing as to the antenuptial contract and the right of the widow to inherit. The trial of this last mentioned issue finally resulted in a judgment of the probate court, holding the antenuptial contract of no effect; that Hattie M. Besse was the widow of Alexander Besse, deceased, and irrespective of his will was entitled to one-half of his estate, and that she was entitled to a certain automobile and the sum of $750 as a statutory allowance to the widow. Following this judgment the parties adverse to the widow appealed to the district court.
At the trial in the district court, it was stipulated that the probate court files, so far as pertinent, were to be considered in evidence, and that the transcript of the evidence in the probate court should be considered in evidence. Some oral testimony was also taken and will be referred to later. The district court made findings of fact generally favorable to the widow, and concluded as matters of law that the signature of Hattie Betts to the antenuptial contract was obtained by fraud and the contract should be held for naught; that the contract by'its terms did not preclude her from inheriting the widow’s share, and that irrespective of the will of Alexander Besse, his widow was entitled to receive one-half of his estate and the sum of $750 and the automobile as statutory allowances. For reasons hereafter mentioned we need not detail the trial court’s findings of fact or conclusions of law.
Following the judgment the parties adverse to the widow filed motions for a new trial and to set aside certain findings of the trial court and its conclusions of law, and these motions being denied, they perfected appeals to this court, their specifications of error covering trial errors, the judgment rendered and the rulings on the motions to which reference has just been made. No error is speci fied on any claim that evidence was erroneously admitted or rejected.
In this court, appellants direct our attention to the fact that such oral testimony as was offered in the district court did not involve the antenuptial contract; that the cause was tried in the district court upon the transcript of evidence submitted to the probate court, and that under such circumstances it is the duty of this court to decide for itself what the facts establish, substantially as it would in an original case, citing in support In re Estate of Kemper, 157 Kan. 727, 734, 145 P. 2d 103. Application of the rule contended for was made in In re Estate of Wallace, 158 Kan. 633, 635, 149 P. 2d 595, and the rule will be followed here. Accordingly we shall summarize the evidence in the same order it was received in the probate court insofar as it is necessary to dispose of the questions presented in appellants’ brief, and later mentioned. The following testimony was offered by Mrs. Besse. v
Floyd Fowler testified he was the husband of a granddaughter of Mrs. Besse. On Thanksgiving day, November 25, 1943, he saw Mr. and Mrs. Besse at his wife’s folks in Independence, Mo. Mr. Besse was there from about 10:00 a. m., until 11:30 p. m. He did not hear them say anything about property owned by Mr. Besse nor any discussion about any contract with reference to their property. On the next day he was in the courthouse in Kansas City, Kan., and saw Mr. Besse at a desk. Mr. Besse called Mrs. Besse over to him. As the witness stood talking to his wife Mrs. Besse came up and handed him a paper (the so-called antenuptial contract) and said, “Here, read this, what is this?” He looked at it and handed it back, saying he could not read it. Mrs. Besse said she did not have her glasses and could not read it and she said to Mr. Besse, “What is that?” to which he replied, “That is to show you I am going to give you our home for a wedding present.” Shortly after, all parties present went up to the probate court where Mr. and Mrs. Besse procured a marriage license and were married. Cross-examination developed that the witness had been convicted twice of violation of the liquor laws.
Mrs. Floyd Fowler testified that Mr. and Mrs. Besse were at her mother’s home the day before they were married; that she heard nothing said about Mr. Besse’s property nor any contract or agreement; that on the day they were married she saw Mr. Besse standing at a counter in the courthouse in Kansas City, Kan., where he was writing something. Mrs. Besse went over to where Mr. Besse was standing. She went over and Mrs. Besse brought a paper to her husband to read. ' The witness looked at the paper but couldn’t make it out. Her husband handed it back to Mrs. Besse and told her he couldn’t read it and she asked Mr. Besse what was in it and he told her he was giving her their home as a wedding present. She did not see her grandmother sign the paper. Shortly after the parties went upstairs where Mr. and Mrs. Besse were married. Mr. Besse had told them the evening before he wanted them to be present at the marriage. Cross-examination of this witness went into some detail about the family of Mrs. Besse and that her second husband, Betts, died leaving some property, concerning which there was litigation.
Hattie Besse, as a witness in her own behalf testified to her márriage to Mr. Besse; that when seventeen years of age she was married to Charles Gedney who died after they had been married forty-five years; that about a year and a half after his death she married Harry Betts who died six years later; that she inherited nothing, from Gedney but did inherit some property from Betts (the record discloses Betts died in June, 1940); that she was not able to read without glasses; that she had signed the contract; that the first time she saw it was twenty minutes before she was married; that she did not read the paper before she put her name on it and the contents were not read to her by anyone prior to the time she signed it. 'She didn’t have her glasses on but she believed the paper (contract) was the same one she had handed to Mr. Fowler. No one explained the contents of the paper to her. At the time she was married to' Mr. Besse she did not know whether he had a will or not. At the time of marriage she did not' know the extent or value of his property and she did not know there was a mortgage on the home until a few days ago. She further testified that at the time of the marriage she did not know the law of Kansas with respect to the right of a widow to inherit; but knew that the widow got a share. She also testified that when her father died in Kansas her mother got half of his estate, and she gave her mother her share of the estate. When this occurred is not stated. Mr. Besse had hay fever and sugar diabetes, but he was out all of the time tending to his business and the morning he died he went to work as usual. At the time of the marriage she owned a property -in Pittsburg and a little farm. At the time she signed the paper slie did not intend to sign away -what rights she might have to inherit from Mr. Besse, and'she did not understand she might be signing away such rights. She signed the paper right after she had handed it to Floyd Fowler. She was cross examined as to her 'family and further said that she inherited about $2,000 from her second husband in Oregon; that she never knew of any such contract as an antenuptial contract; that when she came back to Kansas she bought her home and little farm; that prior to her marriage to Mr. Besse he told her about his interest in the Besse Hotel. He never discussed that he,owned the Colonial Theater but he got complimentary tickets. She did not know until after the marriage about his property. Cross-examination about whether she thought it unusual to sign a paper showing she was to receive a gift, is argumentative and will not be set forth further than to note her answer that if she had had her glasses she would have seen what she was signing.
Mrs. Ray Gedney testified she was a daughter-in-law of Mrs. Besse; that Mr. and Mrs. Besse had Thanksgiving dinner at her home the day before they were married; that Mr. Besse said they were to be married but she heard nothing said about his or her mother-in-law’s property; that when they arrived at the courthouse in Kansas City on the following day Mr. Besse was standing at a counter writing something. She didn’t hear any conversation with Mr. Besse and did not hear any discussion of any contract or agreement of any kind.
Mrs. Floyd Gedney testified that she was at her sister-in-law’s home on Thanksgiving day but did not hear Mr. and Mrs. Besse discuss anything about their money, property or any contract. She was present in Kansas City, Kan., saw Mr. Besse standing at the counter writing but heard no conversation in reference to any paper that was signed.
At a later date further testimony was offered as a defense to the showing made by Mrs. Besse.
Mrs. Ballenger testified that she was employed in the probate court of Wyandotte county on November 26, 1943, and that she attended to a part of the application for the wedding license issued to Alexander Besse and Hattie Betts, and that she remembered that Mrs. Betts signed the affidavit and that Mrs. Betts put on her glasses for the purpose of signing it; that they were tortoise rim glasses and of yellow or tan color. On cross-examination she stated that she was one of six clerks, and-all helped in filling out affidavits for marriage licenses which ran between five and six hundred per month, and that she would fill out a hundred per month. Without details, it may be said she testified positively she remembered Mrs. Betts and that Mrs. Betts' took out her glasses to read and sign the affidavit.
Mrs. Myrtle Biles testified that she knew Mr. and Mrs. Besse before their marriage; that in a conversation a month and a half before the marriage they talked about Mr. Besse’s property; that Mrs. Betts was “kidding” and she said she thought she was going to catch Mr. Besse, and wanted to know if he had anything, and that witness said he had a good deal of property but it was mortgaged; that later the witness was “kidding” Mr. Besse about getting married and he said if he did get married he was going to let Mrs. Besse have the Kansas property for her lifetime and $100 a month. Cross-examination developed she was indebted to the Besse estate on a real-estate contract, and that she knew a good deal about Mr. Besse’s business.
As the result of a good deal of colloquy the probate court admitted the following over the objection of Mrs. Besse: Mr. Shriver testified that he was associated with Alexander Besse in his lifetime and after his death he found an envelope containing the so-called antenuptial contract. During the colloquy Hattie Besse’s counsel produced a document headed “Marriage Agreement.” It may here be noted this document was not signed by any person. The general purport of the document was that it was made between A. Besse and Hattie Besse; that on November 25, 1943, in contemplation of their intended marriage the parties had executed a temporary agreement in handwriting which provided as follows, and the so-called antenuptial contract was then set out in full; that that contract was not notarized nor recorded, necessitating her joining with him in executing deeds and mortgages on property in which she had no present or contingent interest, and that the parties were desirous of affirming their prior agreement and clarifying their intention, and then follows a detailed provision limiting her rights in his estate and stating that she waived all right of inheritance, the details of which need not be set forth. Between the place provided for signatures and a form for acknowledgment, appeared the following, unsigned statement:
“No, I never will sign such an agreement as this. Thanks I am your wife and such I intend to remain, as such until death parts us.”
It was admitted in the colloquy mentioned that Mrs. Besse wrote the statement last mentioned. Shriver testified he had typed the agreement and delivered it to Mr. Besse. Later Mrs. Besse had told him Mr. Besse had brought out a contract for her to sign and she said she was not going to sign it.
By way of impeachment of Mrs. Besse there was offered in evidence a copy of proceedings had in the circuit court of Umatilla county, Oregon, in an action wherein Hattie Betts sued Gerald Betts and others to set aside a certain contract which she alleged she was induced to sign on the representation it set forth her full and complete rights in the estate of her deceased husband, Harry Betts. No copy of this contract is shown and we are not aware of its terms. She prayed that this contract be set aside and that she be decreed the owner of certain property under the laws of Oregon. The record discloses that the matters involved were settled and compromised and the action dismissed. There is no statement as to what the settlement was.
Mrs. Besse was recalled in her own behalf and stated she did not have her glasses with her at the courthouse in Kansas City, Kan., at the time of her wedding, and she denied she had told Myrtle Biles she thought she was going to catch Mr. Besse. On cross-examination she was asked to produce her glasses and the record shows: “. . . let the record show that the glasses are of plastic rim, yellow in color — light yellow in coloring.” Later Mrs. Ballenger was asked if she recognized the glasses and said, “Not particularly,” but in general they were the same.
The inventory and appraisement filed in the probate court showed that at the time of his death Alexander Besse owned seventy-five parcels of real estate and a large amount of corporate stocks and other personal property all appraised at $118,586.98, and that there were liens on the property amounting to $42,000. Subtraction discloses his net, worth was $76,586.98. The trial court in its findings of fact found the net value of his estate was approximately $62,000. The record as abstracted does not explain the discrepancy in amounts.
It may further be said that attached to the appellants’ brief is a photostatic reproduction of the antenuptial contract. It appears to be written with pencil on a rather small piece of pape;'. It is not easily read as the penmanship is not good, there are two interlineations, and some writing over other writing. It is conceded that except for the signature of Mrs. Betts the entire document is in the handwriting of Alexander Besse.
In their .brief appellants state five questions and argue them in order. In substance they include: 1. At the time the antenuptial contract was made did Mrs. Besse know that a widow was entitled to one-half of her deceased husband’s estate? 2. At that time did she know of his substantial property interests? 3. Was her signature to the contract obtained by the fraud of her husband? 4. Was the contract reasonable in its provisions for her? 5. Should the antenuptial contract be construed to the effect that she took no share in her husband’s estate except that mentioned in the contract?
Preliminary to discussion of those questions and the argument of appellants in support, we take up briefly some of our decisions applicable to the situation generally.
In Watson v. Watson, 104 Kan. 578, 180 Pac. 242, it was held an antenuptial contract must be upheld unless fraud, deceit or unreasonable inadequacy or disproportion appeared, but if the latter did appear, a presumption of fraud is raised and the burden is on-the husband or those claiming under him to show the wife was fully informed.
In McVicar v. McVicar, 128 Kan. 394, 278 Pac. 36, it was recognized that a surviving spouse may bar or limit her statutory right of inheritance by an antenuptial contract, many of our decisions being cited. But it was also stated that to be valid, such a contract must be understandingly and fairly made.
In In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483, it was held that the validity of antenuptial contracts would be upheld where such contracts are fairly and understandingly made, are just and equitable in their provisions and are not obtained by fraud or overreaching.
In In re Estate of Garden, 158 Kan. 554, 148 P. 2d 745, in discussing antenuptial contracts it was said:
.“Where they are fairly and understandingly made, and just and equitable in -their provisions, and free from fraud and deceit, they are valid and en* foreeable.” (1. c. 560.)
More recent decisions stating the same general principles are Fincham v. Fincham, 160 Kan. 683, 165 P. 2d 209, and In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515.
All of the decisions above noted contain reference to many others not noted, but all are to the' same effect.
Notwithstanding the division made by appellants’ statement of questions, we are of opinion the primary matter which should be discussed is whether the contract was fairly and understandingly made or whether it was executed as a result of the fraud of Alexander Besse. Appellants direct our attention to Hoard v. Jones, 119 Kan. 138, 237 Pac. 888, where it was held that:
“When a party voluntarily signs and delivers an instrument affecting property rights, and thereafter seeks to refute it on the ground of fraud of the other party thereto which induced its execution, such fraud should be made clearly to appear before the instrument is declared invalid.” (Syl. ¶ 1.)
And in effect argue that having signed the contract, the burden was on the widow to make it “clearly to appear” that she was defrauded, and that her evidence did not sustain that burden. It may here be noted that appellants’ evidence did not cover anything connected with the preparation or execution of the antenuptial con-. tract.
Limits of space do not permit an extended discussion of each particular item of evidence of the appellee mentioned by the appellants. It is said that the best evidence whether Hattie Besse’s signature was obtained by fraud or whether she knew the contents of the antenuptial contract previous to signing it, is contained in the instrument itself; that her explanation for not reading the contract was that she did not have her glasses with her; that the latter was disproved by the testimony of Mrs. Ballenger, and, in' effect that Hattie Besse’s statement as to what happened in the Wyandotte county courthouse is not to' be believed. Floyd Fowler’s testimony is atttacked and said to' be ample proof of his interest in aiding the grandmother of his wife, and it is said his criminal record speaks for itself in exhibition of his credibility. Appellants also stress the fact that Hattie Besse, by reason of the Oregon lawsuit, would not have signed a document without reading it; that Hattie Besse must have appreciated the fact that she did not have to sign any paper to show she was receiving a gift from her prospective husband. Appellants also directed our attention to the proposed unsigned “Marriage Agreement” and to Hattie Besse’s notation thereon and argue that if Alexander Besse had obtained the contract of November 25,1943, by fraud, he would not have had effrontery to present,the second agreement to her. Attacks are made on other parts of the evidence adduced on behalf of Hattie Besse, and it is said that the charge of fraud is wholly predicated upon her charge she did not have her glasses with her, and that the failure of the evidence to sustain her contention that she did not have her glasses leaves the fraud charge without any support.
Our review of all the evidence bearing on the execution of the antenuptial contract, summarized above, leads us to the conclusion that the matter may not be determined simply by deciding whether Hattie Besse did or did not have her glasses with her at the time the contract was presented to her. There is abundant evidence, besides that of Hattie-BeSse, as to the manner in which her signature was obtained. Floyd Fowler’s statement of what occurred is not only not inherently improbable but is supported directly by the testimony of his wife, and indirectly by the testimony of other witnesses, and by the antenuptial contract itself. Certainly the testimony does not show that whatever it may have been that Alexander Besse was writing at the desk in the courthouse when the other people arrived, was the particular antenuptial contract Hattie Besse was asked to and did sign, but that contract on its face shows that it was not carefully prepared, it is rather illegible, contains interlineations, writing over other writing and bears that much indicia it had been hastily prepared. The document tends to verify Floyd Fowler’s statement as to why he couldn’t read it and tell Mrs. Besse what it was. But that is not all. Whether Hattie Besse did or did not have her glasses and that we need not decide, she did ask her prospective husband what the document was, and upon his explanation that it was to show a gift to her, she signed if. Her testimony is corroborated by that of Floyd Fowler and his wife and the testimony of the wife is not criticized in any manner. Nor can we agree that simply because Floyd Fowler may have violated the liquor laws, he is so wicked that he cannot tell the truth about a matter in which he has only a very remote interest, if indeed, he has any interest at all; and this is especially so where his testimony is entirely consistent with the other testimony and with all the surrounding circumstances.
From the manner in which this case reaches us, we determine the facts from the printed page. We' have not seen the witnesses. We cannot be unmindful, however, that the witnesses were all personally present in the probate court, and the court concluded that the antenuptial contract was obtained by fraud.
A survey of the entire record discloses that within a short time prior to the marriage, and at a time when the contracting parties occupied positions of confidence and trust to each other (see In re Estate of Garden, supra) the execution of the antenuptial contract was obtained. Under the facts and circumstances as disclosed by the evidence and which need not be repeated, that contract was not fairly and understandingly made, but its execution was obtained by fraud. Mrs. Besse sustained the burden of proving her case, and made it “clearly to appear” that the antenuptial contract should be declared invalid.
In view of the conclusion just expressed we need not discuss the other questions suggested by the appellant, for it follows that if there was no valid contract, Hattie Besse would have such rights in her deceased husband’s estate as the law provides. There is no question but that she duly filed an election to take under the law and not under the will.
The judgment of the district court is affirmed.
Hoch, J., not participating.
Burch, J., dissents.
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The opinion of the court was delivered by
Smith, J.
This was an action to recover the difference between the amount of taxes plaintiff claimed to be due from it to the state for the year 1946 and the amount the defendant commissioner of insurance claimed to be due the state from plaintiff, which difference plaintiff was compelled to pay to defendant. Plaintiff's motion for judgment on the pleadings was sustained. The defendant has appealed.
The plaintiff alleged that it reported to defendant .that based upon its business for the year ending December 31, 1945, pursuant to G. S. 1935, 40-252, it owed $11,237.21 taxes; that upon receipt of this report and a check for that amount defendant made an assessment against it of $14,706.42, which defendant claimed to be due the state from plaintiff, under G. S. 1935, 40-253; that at no time was there any Massachusetts law requiring any insurance company or fraternal society organized under the laws of Kansas applying to do business in Massachusetts to make any payment for taxes greater than the amount required for such purpose under Kansas laws from insurance companies organized under the laws of Massachusetts.
The petition further alleged that prior to an amendment of the laws of Massachusetts in 1943 Kansas companies doing business in Massachusetts were required to pay one-fourth of one percent of the net value of all policies in force on December 31st of the previous year upon the lives of residents of Massachusetts; that in 1943 Massachusetts changed the “net value tax” to a two-percent premium tax, such as was in effect in Kansas, but provided that if on December 31,1943, the net-value tax exceeded the two-percent premium tax on any foreign insurance company authorized to do business in Massachusetts that company should pay the greater net value tax until it was equal or exceeded by the two-percent premium tax; that there were not and never had been any Kansas insurance companies doing business or authorized to do business in Massachusetts ; that if any Kansas company should attempt to do' business in Massachusetts the statutes of that state would require it to pay a two-percent'premium tax only, so that any Kansas company doing business in Massachusetts under the same circumstances and during the same period as the plaintiff did in Kansas in 1945, would have paid in Massachusetts only $11,237.21 and not $14,706.42; that before the payment of the greater tax the plaintiff advised defendant of its position but defendant informed plaintiff that he would not accept any payment under protest, and without payment of the $14,706.42 the commissioner of insurance refused to issue a certificate of authority to do business; that on that account the plaintiff paid the larger amount. Judgment was asked for the difference between these amounts or $3,469.21.
’ The plaintiff filed an amendment to this petition in which it stated the substance of certain Massachusetts statutes bearing on the question.
The parties made a stipulation as to the facts, as follows:
“In arriving at the assessment in this ease the defendant claimed, and the plaintiff denied, (a) that, section 40-253, G. S. 1935, and that part of the Massachusetts law imposing an exaction of one-fourth of one percent of the net value of insurance policies, were applicable in the situation involved in this case; (b) that such part of the Massachusetts law materially discriminated against Kansas corporations that might seek to do business in Massachusetts; (c) that the assessment of $14,706.42 was made to and did equalize the alleged discrimination caused by law, and so contending, the defendant commissioner assessed against the plaintiff the sum of $14,706.42, as admitted in the pleadings. There was and is no dispute about any other tax or fee, and none other is involved in this case.
“There is no dispute as to the facts involved in this case, except insofar as the foreign statute admitted and to be construed is considered a fact. The purpose of the litigation is to determine whether, under those facts, section 40-253, G. S. is applicable to this case, and whether, under those facts, that part of the Massachusetts law above-mentioned is applicable to this case, and to determine whether the application of the law to the facts requires the assessment of $14,706.42 or $11,237.21, and to preserve to each party hereto its rights to appeal to the Supreme Court of Kansas from any judgment this Court might render.”
Both parties moved for judgment on the pleadings', that of the plaintiff was sustained and judgment entered in the amount prayed for.
The appellant first refers to G. S. 1935, 40-253. That section provides, in part, as follows:
“Whenever the existing or future laws of any other state or country shall require from insurance companies or fraternal benefit societies organized under the laws of this state, or of the agents thereof, applying to do business in such other state or country, any . . . taxes . . . greater than the amount required for such purpose from insurance companies of other states ... all companies of any such state . . . doing business in this state shall . . . pay to the Commissioner of Insurance for taxes ... an amount equal to the amount of such charges and payments imposed by the laws of such other state . . . upon the companies of this state.”
The above is sometimes referred to as the retaliatory tax statute. Its theory was stated by us in Employers Casualty Co. v. Hobbs, 149 Kan. 774, 89 P. 2d 923. There we said:
“Under our statutes an insurance company organized under the laws of another state or country is required to pay certain specified fees as a condition to its right to do business in this state. In order to insure that insurance com-: panies organized under the laws of .this state seeking to do business in another state may be accorded fair treatment, we have the retaliatory statute. Whether the statute comes into operation with respect to any foreign insurance,company depends on the exactions required by the state óf its domicile of Kansas insurance companies seeking to do business there. And where our statute refers to exactions by other states ‘greater than the amount required for 'such purpose from insurance companies of other states by the then existing laws of this state’ the purpose to be served is compliance as a, condition to .the right to do business.” ' .
Chapter 509 of the Laws of Massachusetts for 1941 provided in section 5, in part, as follows:
“Every life insurance company, as defined by section one hundred and eighteen of chapter one hundred and seventy-five, authorized to transact business in the commonwealth shall annually pay an excise of one-quarter of one percent upon the net value of all policies in force on December thirty-first of the year preceding that in which the tax is payable, issued or assumed by such company on the lives of residents of this commonwealth as determined by the commissioner from the return required under this section and such other evidence as he may obtain.”
This section was amended in 1943 by the Laws of Massachusetts, chapter 531, section 1, as follows:
“Every life insurance company, as defined by section one hundred and eighteen of chapter one hundred and seventy-five, authorized to transact business in the commonwealth shall annually pay an excise, as determined by the commissioner, of two percent upon all new and renewal premiums received during the preceding calendar year for all policies allocable to this commonwealth, as hereinafter provided.”
The same chapter provided in section 2 as follows:
“Any life insurance company, authorized to transact business in the commonwealth on December thirty-first, nineteen hundred and forty-three, which would be required under section twenty of chapter sixty-three of the General Laws, as amended by section one of this act, to pay a premium excise greater than an excise upon the net value of its policies under said section twenty as effective on said date, in the year nineteen hundred and forty-four and in any subsequent consecutive year, in lieu of the two percent premium excise as provided in said section twenty, as amended by section one of this act, shall, except as hereinafter provided, annually pay the excise upon the net value of policies imposed by said section twenty as effective on December thirty-first, nineteen hundred and forty-three. Said excise shall be paid for each year until the year for which the amount thereof equals or exceeds the amount of the premium excise imposed by said section twenty, as amended by section one of this act, and for that year and annually thereafter such company shall pay an excise on the premium basis.”
Defendant points to the above sections and argues that had a Kansas company been doing business in Massachusetts on December 31, 1943, and had its tax calculated on the basis of one-fourth of one percent of the net value of its policies been greater than if it had been calculated on the basis of two percent premium tax, then that company would have been required to pay the larger amount calculated on the net value theory, and in retaliation plaintiff should be compelled to pay taxes in Kansas calculated on the one-fourth-of-one-percent rate since that would be the theory upon which a Kansas company would have been compelled to pay in 1944 and subsequent years under the same circumstances to do business in Massachusetts.
Defendant argues that the correct method to employ in determining the total excise to be paid by a foreign corporation doing business in this state is to apply the statute of the domicile of the foreign corporation as though it were the statute of this state. (See Employers Casualty Co. v. Hobbs, 152 Kan. 815, 107 P. 2d 715.) The defendant then points out the pertinent Massachusetts statutes which have already been set out in this opinion, that is, every company shall pay annually an excise tax of two percent upon all new and renewal premiums received during the preceding year for all policies allocable to the commonwealth; and that any life insurance company authorized to transact business in the comonwealth on December 31, 1943, which would be required under section 1 to pay a premium excise less than the excise on the net value, shall each year thereafter pay one-fourth of one percent on the net value of its policies.
Defendant next argues that in order to bring itself within the provisions of the two-percent class in the Massachusetts statute, plaintiff would have to plead and prove that the two-percent premium excise on its business equaled or exceeded the excise of one-fourth of one percent on December 31,1943, and for each subsequent year and since it failed to do this its petition failed to state a cause of action.
This argument overlooks the realities of the situation. G. S. 1935, 40-253, provides in substance that it shall apply if the laws of Massachusetts shall require from Kansas companies applying to do business in Massachusetts any payment for taxes greater than the amount required for such purpose by the then existing laws of Kansas. Our attention is called to the use of the word “applying” as distinguished from “having applied.” Our attention is also called to the fact that there were no Kansas companies doing business in Massachusetts prior to December 31, 1943, so that any Kansas company to which the statute of Massachusetts would apply would be one which applied for admission subsequent to December 31, 1943. The Massachusetts statute in such a situation would require that a Kansas company pay on the two-percent basis. Such is the clear meaning of the Massachusetts statute. No larger payment is required of a Kansas company applying to do business in Massachu setts than is required of a Massachusetts company by G. S. 1935, 40-252, without reference to G. S. 1935, 40-253. Such an interpretation accomplishes the result for which G. S. 1935, 40-253, was enacted, that is, an equalization of the burden as nearly as can be among the states.
It is generally known that until the Massachusetts law was amended in 1943 to provide for the two-percent premium tax plaintiff did pay in Kansas at the one-fourth-of-one-percent rate. This was proper because had a Kansas company applied to do business in Massachusetts it would have been compelled to pay at that rate. That is not the case now. A Kansas company applying to do business in Massachusetts would pay the two-percent rate. There is no other rate.
The judgment of the trial court is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Harvey, C. J.
The appeal in this case is from an order of the district court dismissing plaintiff’s action upon the ground that the court had no jurisdiction thereof.
Briefly stated the facts are: John C. Rubow, a resident of Osage county and the owner of a described eighty-acre tract of land in Osage county, died intestate in October, 1945, leaving as his sole heirs at law his widow, Susan F. Rubow, and his daughter, Joyce Felton. The widow was duly appointed administratrix of the estate of the decedent and filed an inventory of the assets of the estate in which she listed, “Real estate: None.” Ignoring the probate court, counsel for the daughter filed this action in the district court alleging she was the owner of an undivided one-half interest in the land, that she had made demand upon defendant for the joint possession and use of an undivided one-half interest therein, which’ demand had been denied, and praying for possession, use, accounting of rents and profits, and for partition and the quieting of title. Defendant filed a motion to dismiss the action on the ground and for the reason that the petition shows the administration of the estate was pending in the probate court. The court heard that motion and specifically found:
“That plaintiff's action is a claim by inheritance against the only- other heir at law of John C. Rubow, deceased, for the recovery of an interest in real estate owned by John C. Rubow at the time of his death and that administration of the estate of said John C. Rubow, deceased, was at the time of filing said action and- now is pending in the Probate Court of Osage County, Kansas, and that this Court has no jurisdiction qf said action.”
The court adjudged and ordered that the action be dismissed and the costs taxed to plaintiff.
Our probate code (Laws 1939, ch. 180, now G. S. 1945 Supp., ch. 59), the pertinent sections of which will be referred to, provides a complete system of laws for the administration upon and distribution of estates of decedents. By section 59-301, “The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction: ... (2) To grant and revoke letters . . . of administration. (3) To direct and control the official acts of . . . administrators, to settle their accounts, and to order the distribution of estates.' ... (5) To determine the heirs . . . of decedents. . . . (12) And they shall have and exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.1” The procedure for administration of the estate of an intestate decedent begins with the filing of a petition for administration (59-2219), the giving of notice for administration (59-2222), and a hearing upon the petition (59-2232). The procedure is adversary as distinct from ex parte. When the administrator is appointed he is required to file an inventory (59-1201), and may file a supplemental inventory (59-1203). If anyone thinks property has been omitted from an inventory he may file a petition for disclosure (59-2216), upon which a hearing shall be had and appropriate orders made. “The . . . administrator shall have a right to the possession of all the property of the decedent,” (59-1401) with exceptions not here pertinent.
When the estate has been fully administered the administrator shall file a petition for a final settlement and • accounting, “and a determination of the persons entitled to the estate of a decedent,” notice of the hearing of which shall be given (59-2247). There may be a determination of advancements (59-2248). Upon the hearing of a petition any competent evidence may be offered, the correctness of the account of the administrator shall be determined, and “Upon such settlement . . . the court shall determine the heirs, . . . entitled to the estate and assign the same to them by its decree. The decree shall name the heirs, . . . describe the property, and state the proportion or part thereof to which each is entitled. Said decree shall be binding as to all the estate of the decedent, whether specifically described in the proceedings or not.” (59-2249.)
The statute (59-2401 et seq.) makes ample provision for appeal to the district court by anyone aggrieved by a judgment or decree of the probate court.
Other sections of the statute might be referred to, but we deem these sufficient for the case before us. It is clear that these statutes place in the probate court the original jurisdiction of all matters attempted to be raised by the plaintiff in the proceedings here filed in the district court; hence the probate court was the proper court for plaintiff to proceed. The district court had no jurisdiction of the matter unless there had been an appeal from some judgment or decree of the probate court. Various phases of this matter have been adjudicated in numerous of our decisions. (Foss v. Wiles, 155 Kan. 262, 268, 124 P. 2d 438; Burns v. Drake, 157 Kan. 367, 139 P. 2d 386; Gantz v. Bondurant, 159 Kan. 389, 393, 155 P. 2d 450.) This list is not intended to be complete.
Counsel for appellant cites Kininmonth v. Carson, 156 Kan. 808, 818, 137 P. 2d 173, and Sheedy v. Willoughby, 157 Kan. 508, 142 P. 2d 801. Neither of these cases is,in point, as an examination will clearly disclose.
Counsel for appellant is a nonresident of this state. Obviously he is not familiar with our statutes pertaining to the estates of deceased persons nor with the jurisdiction of our courts pertaining to such estates. He ignored our statute (G. S. 1945 Supp., 7- 104) which required him to have an attorney in this state associated with him. Our recent legislature has amended the statute last mentioned (Senate bill No. 234) with the hope of avoiding such miscarriages of justice in the future.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Parker, J.
In an action to quiet title actual service of summons was had upon First National Bank in Wichita, a corporation. Service was obtained upon all other defendants by publication. Judgment by default was taken in favor of the plaintiffs. After expiration of the term 'at which it was rendered, the First National Bank in Wichita, designating itself as trustee, not a party to the action, filed an application to open- up the judgment under G. S. 1935, 60-2530, alleging that it was the successor in interest of The National Bank of C°mmerce, Wichita, trustee, one of the defendants therein. At the same time it filed its answer to the petition. The appeal is from orders made by the trial court resulting in the opening of the original judgment ,and from the rendition of a second judgment decreeing the First National Bank in Wichita, trustee, to be the owner of an undivided one-fourth interest in and to the minerals in place under the real estate described in the plaintiffs’ petition and quieting its title thereto.
Notwithstanding the scope of the appeal an examination of the record reveals the all-decisive issue involved is raised by appellants’ specification of error charging that the trial court erred in granting the application to open the judgment. For that reason,' except as it becomes necessary to pass upon other questions dependent upon its decision, this opinion will be limited to facts, portions of the pleadings and legal principles applicable to that issue.
A general summarization of the pertinent preliminary facts disclosed by the record and essential to an understanding of the issue to which we have just referred, may be thus stated: On April 3, 1918, the then owners of the real estate involved which is located in Butler county executed a mineral deed purporting to convey to The National Bank of Commerce, Wichita, trustee, its successors and assigns an undivided one-fourth interest in the' minerals in place under such land and in due time that instrument was placed of record. Thereafter, the original owners conveyed the real estate to James M. and Lola Pearl Wilson, the present plaintiffs. On January 13,1920, The National Bank of Commerce and The Kansas National Bank, both of Wichita, consolidated and formed the First National Bank in Wichita. Notice of the consolidation was filed of record in Butler county in November, 1926. February 20, 1945, the plaintiffs instituted this action which culminated in the judgment quieting their title to the.land.- Included as parties defendant thereto were: The National Bank of Commerce, Wichita, a.corporation if legally existing and if dissolved its unknown-successors, trustees and assigns;. The National. Bank of Commerce, Wichita, trustee, if acting in that capacity and if not so acting then its .unknown successors and assigns; and First National Bank in Wichita, a corporation. As heretofore indicated service on the first two defendants named was constructive, service on the one last mentioned was actual, and all three failed to answer or otherwise plead to the petition. • :
The application to open the judgment was duly verified. With respect to the point in question it contains the following relevant allegations:
“That this applicant as trustee and successor to the rights of The National Bank of Commerce, Trustee, was not made a party defendant to this action; that it at all times maintained a place of business in Wichita, Sedgwick County, Kansas, and that no service of summons was made upon said applicant as trustee, and that this applicant as trustee never at any time had- any actual notice or knowledge during the pendency of this action that the same was pending.” I
. Particularly germane averments of the answer, attached to and made a part of- such application) read: .
“That under date of January 13, 1920, The National Bank of Commerce and The Kansas National Bank, both of Wichita, Kansas, consolidated and formed First National Bank in Wichita, and that by reason of said consolidation, First National Bank in Wichita has succeeded to all of the assets, rights, property and activities formerly belonging to the said The National Bank of Commerce. ...”
It was with facts and pleadings before it, as heretofore related, that the trial court opened the judgment and let in the First National Bank in Wichita, trustee, to defend, and thereafter rendered the second judgment to which we have heretofore referred.
At the outset we pause to observe that proceedings to open up judgments may be instituted under three sections of our statute, G. S. 1935, 60-2530, 60-3001 and 60-3007. However, in this case we are concerned with the first section only as the appellee concedes its application was filed under and its right to have the judgment opened depend upon the provisions of such section.
G. S. 1935, 60-2530, is applicable to cases where the only service upon a defendant is by publication and he did not have any actual notice of the pendency of the action in time to appear and make his defense. Portions thereof pertinent to this appeal read:
“A party against whom a judgment or order has been rendered, without other service than publication in a newspaper, may, at any time within three years after the date of the judgment or ord$r, have the same opened, and be let in to defend. Before the judgment or order shall be opened the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; . . .”
In this jurisdiction to entitle a litigant to relief under the section just quoted there can no longer be any question but that lack of notice of the pendency of the suit in time to defend is a fundamental prerequisite and must be affirmatively established.
In Wood v. Cobe, 80 Kan. 496, 103 Pac. 101, we held:
“An indispensable prerequisite to the right to open up a judgment under section 77 of the civil code (section 83 of the new code) is that the applicant shall make it appear to the satisfaction of the court that during the pendency of the action he had no actual notice thereof in time to appear and make his defense.
“Mere oversight and inadvertence of a party in failing to make his defense at the trial of an action of which he had actual notice does not justify the opening up of the judgment under that provision of the code.” (Syl. ¶¶ 1, 2.)
To the same effect is McLeod v. Palmer, 103 Kan. 238, 173 Pac. 533, holding:
“In a proceeding to open up a judgment rendered on service by publication only, the defendant making the application, among other things, must show that he did not have actual notice of the action in time to appear and make his defense, and the fact that he was under disability by reason of confinement in the penitentiary furnishes no sufficient reason for opening the judgment if before his disability he had actual notice of the pendency of the action in time to enter his appearance and present his defense.” (Syl. ¶ 2.)
See, also Suter v. Schultz, 134 Kan. 538, 7 P. 2d 55.
In view of the undisputed facts appearing from the record can it be said the appellee brought itself within the terms of the statute? To conclude, as we do, that the question requires a negative answer we need only to give force and effect to the allegations of appellee’s own answer. There, and we repeat for purposes of emphasis, it is stated that by reason of the consolidation of The National Bank of Commerce and The Kansas National Bank, both in Wichita, First National Bank in Wichita has succeeded to all of the assets, rights, property and activities, formerly belonging to The National Bank of Commerce. Obviously, one of the activities of such last-named institution was the interest it had acquired as trustee under and by virtue of the mineral deed in controversy. By its own admission appellee concedes First National Bank in Wichita has succeeded thereto. The bank was personally served with summons. It had actual notice. All it needed to do was to give heed thereto and it would have immediately ascertained The National Bank of Commerce as trustee had been made a party defendant in the action and that one of the activities to which it had succeeded as a result of the consolidation was involved in the litigation. In that situation notice to the bank was all that was required. Notice to it was actual notice to the appellee and, whatever the nature of the latter’s interest in the res may have then been, or may now be, a question we are not called upon here to determine, it does not now lie in its mouth to say it had no actual notice of the action and thus procure an opening up of the judgment when the bank, which it concedes is the source of whatever title or interest it may have in that res, could not do so.
In reaching the conclusion just announced we have not been unmindful of our decision in Loan Co. v. Essex, 66 Kan. 100, 71 Pac. 268 and Phillips v. Parker, 148 Kan. 474, 83 P. 2d 709, dealing with the rule that a judgment against a' party sued as an individual is not an estoppel in a subsequent actipn in which he sues or is sued in another capacity or character. We have no quarrel with those decisions. However, they are not decisive of the present issue. The principles there announced are applied tó factual situations entirely different from the one existing in the case at bar. It does not appear from an examination of the opinion in either case that the appellate court was required or gave consideration to the right of a party to have a judgment opened up by reason of the provisions of G. S. 1935, 60-2530, under the conditions and circumstances here involved.
Having determined that appellee was not entitled to an order opening up and setting aside the original judgment in a proceeding instituted under the provisions of G. S. 1935, 60-2530, the question whether it had a full defense to the action becomes of no consequence and is not subject to review. It necessarily follows the trial court’s action in giving it consideration and in rendering the second judgment should be vacated and set aside.
The judgment opening up and setting aside'the original judgment is reversed. The judgment rendered by the trial court subsequent to its action in that regard is set aside and vacated.
.Hoch, J., not participating.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment on a life insurance policy, claiming that the answers of the applicant touching his health relieved the company from liability; that certain testimony was improperly admitted; that certain find-' ings of fact should have been set aside; and that the court erred in charging the jury.
The answers in the application complained of are that he had never had any disease of the stomach, and that to the question, “How often during the past five years did you consult a physician?” the answer was “No.” It seems that the applicant had consulted certain doctors about some digestive disturbance, and had had his stomach washed out and received some treatments, and that some months after the policy was issued the trouble developed into a cancer of the stomach or esophagus, from which he died. The agent testified that he took the examination blank on September 27, 1915, and the policy was issued three days later; that he had known the deceased some two years; that he went to his house to solicit his two boys for life insurance and spoke to the father about insuring him, remaining at the house two or two and a half hours. Later, he called the deceased to come to his office and finally got his application for life insurance, being paid one year’s premium in advance by check. He sent the applicant to Dr. Moses, the examiner, and when the - policy came the agent went out as quickly as he could and delivered it at the applicant’s home and stayed there until after dinner. He did not observe anything unusual about the applicant’s eating; he seemed to eat like the rest of the people — took the same kind of food as near as the agent could tell, and was apparently in good health.
The examiner testified that he did all the writing on the application, except the signature.
“Q. After you had written down the answers in this blank, did you read it over to him? A. No, sir.
“Q. You just passed it to him. and asked him to sign it? A. I just passed it to him and says: ‘This is what you are to sign,’ pointing the place where he is to sign.
“Q. And he signed? A. He signed.
“Q. Yes, and you say to all external appearances, at least, or as far as your examination disclosed, he was a healthy man? A. He was a healthy man.”
The jury found that the deceased consulted one physician June 28, and July 26, 1915, another about August 25 and September 4, and the former about September 27, but that on September 27, and for two months before, he enjoyed good health, and that two months prior to that date he had no sickness.
“13. Was the insured in sound health and insurable condition at the time of the delivery of the policy of insurance sued upon in this action? A. Yes.”
Witnesses were permitted to testify that they had seen the deceased at various times during the summer and fall, one as late as December, and that he looked and acted as usual. This simply corresponds with what the examining physician thought at the time he wrote in the answers to the questions, and it was competent touching the good faith of the deceased, for if his appearance was such that his neighbors and acquaintances, as well as the examining physician, thought him in usual good health, this would tend to show that the applicant had no reason to believe that he had been or was soon to be stricken with a fatal malady.
It is argued, that the truth and not the good faith of the answers is the scale-tipping thing; but it is stated in the plaintiff’s brief, and not disputed, that the policy contained the clause that “All statements made by the insured shall, in the absence of fraud, be deemed representations, and not warranties.” The rule in such cases is that good faith is sufficient. (Mouler v. American Life Ins. Co., 111 U. S. 335; Insurance Co. v. Woods, 54 Kan. 663, 39 Pac. 189. See, also, Farragher v. Knights & Ladies, 98 Kan. 601, 159 Pac. 3, and Diehl et al. v. Mut. Life Ins. Co., 176 Ill. App. 462.) The recent decision in American Bankers’ Ins. Co. v. Hopkins, by the supreme court of Oklahoma, 169 Pac. 489, is very much in point.
Section 5290 of the General Statutes of 1915 provides that—
“No misrepresentation . . . shall be deemed material unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.”
The answer alleged, not only that the applicant when insured was and for many months had been afflicted with cancer of the stomach, but also that all of the representations covering this matter “were false and known to be false by the said David N. Sharrer and were falsely and fraudulently made to the defendant by the said David N. Sharrer for the purpose of inducing the issuance to him” of the policy. The day the examination was made the deceased had had his stomach washed out, and this was repeated two days later, the doctor giving him a prescription. But not until Novémber 1st was an X-ray picture taken, and this revealed what the doctor termed,two notches about as big as a half dime. After the death in the following March a post-mortem examination convinced the same physician that cancer caused the death. Two other doctors examined him on September 4 and discussed a case of malignancy or cancerous stomach, but did not conclude that it was such. Two of the attending physicians during his last sickness testified that a case of cancer might develop and produce death within three mónths, and that they were unable to say that any diseased condition existed as early as September. One of them stated that the condition found at the post mortem was not necessarily inconsistent with good health the previous September.
From the foregoing, it appears that the jury had fair grounds for finding that the claims of existing cancer and fraudulent statements were not sustained.
The instructions gave the jury correct rules to guide their deliberations.
Mention- is made of a previous rheumatic ailment, but this does not appear to have returned, or to have been a causal element in the case.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for specific performance of a contract, to pay the purchase price of real estate. The plaintiff recovered, and the defendants appeal.
The defendant, Nancy J. Moon, is a widow. She had two sons, Charles Stewart Moon and Edgar L. Moon. Charles Stewart Moon is now deceased, and the plaintiff is his widow and administratrix. The contract sued on reads as follows:
“This Agreement, Made and entered into this, the 22nd day of April, 1911, by and between Charles Stewart Moon and his wife, Gertrude E. Moon, parties of the first part, and Nancy J. Moon and Edgar L. Moon, parties of the second part,
“Witnesseth: It is hereby stipulated and agreed and mutually understood that the said Nancy J. Moon is the owner of an undivided one-half (%) interest in the northwest (N. W.) quarter (%) of section sixteen (16), and the north-east quarter (14) of section seventeen (17), township twelve (12), range fourteen (14), Shawnee county, state of Kansas; and that the said Edgar L. Moon is the owner of an undivided one-fourth (%) interest in and to the said above described property, and that the said Charles Stewart Moon is the owner of an undivided one-fourth (%) interest in said property; and that the said Charles Stewart Moon and Gertrude E. Moon, his wife, hereby agree to sell and convey by a good and sufficient warranty deed all their right, title and interest in and to the above described property to Nancy J. Moon and Edgar L. Moon for the sum of five thousand ($5,000.00) dollars, without interest, to be paid on or before two (2) years from this date, subject to any mortgages or liens that may be now upon said property, possession of said property to be delivered during the life of this contract to the said Nancy J. Moon and Edgar L. Moon; and in consideration of the same the said Nancy J. Moon and Edgar L. Moon do hereby agree and promise to pay unto the said Charles Stewart Moon, or his heirs, the said five thousand ($5,000.00) dollars, without interest, on or before two years from this date, for said interest.
“It being further agreed and understood that time shall be the essence of this contract, and that the said Nancy J. Moon and Edgar L. Moon shall well and truly perform and pay unto the said Charles Stewart Moon, or his heirs, said sum of five thousand ($5,000.00) dollars, as herein provided, then said Charles Stewart Moon, and his wife, Gertrude E. Moon, will convey by a good and sufficient warranty deed all their right, title and interest in and to an undivided one-fourth (%) of said property to Nancy J. Moon and Edgar L. Moon, otherwise this contract of sale-shall be null and void.”
The answer was that the land was owned and occupied by-Nancy J. Moon when the contract was made, that neither son had any property in the land, that the contract expressed a device by which a gift of $5,000 to Charles Stewart Moon was to be effected, but which failed for want of funds, and that the obligation apparently created was destitute of consideration. The answer further contained much family history elucidating the situation, motives, and intent of the parties to this family transaction. On motion those portions of the answer were stricken out. At the trial the court refused to admit and struck out material evidence sustaining the portions of the answer left standing, and at the conclusion of the evidence for the defendants, who had the burden of proof, directed a verdict for the plaintff.
The action of the trial court resulted' from a misapplication of the parol-evidence rule. The contract was regarded as containing two parts: first, a written acknowledgment of title and possession in Charles Stewart Moon which could not be disputed, and second, a contract to purchase Charles Stewart Moon’s land, the agreement to convey forming a valuable consideration for the agreement to pay the price. Regarding the contract as severable into distinct portions, as indicated, the portion wherein it was “stipulated and agreed and mutually understood” that the .mother owned-half the land and the sons one-fourth each, either created, modified, or extinguished property rights, or did not. If it did, it required a consideration to support it, and the defense of want of consideration was proper. If it did not accomplish a change in any subsisting right, it was merely an admission relating to facts independently existing and provable by independent evidence, and consequently was not conclusive. In this aspect the writing was simply a piece of evidence tending to show that Charles Stewart Moon was the owner of a one-fourth interest in the land and in possession of it. The proof offered by the defendants overcame this" evidence, and established beyond controversy that he had no right, title, interest, or possession whatever, and that his mother was the sole owner.
/The doctrine of estoppel is invoked by the plaintiff. The plaintiff is not an innocent purchaser, and asserts merely the right which her husband possessed. Why is a person estopped to deny a recital in a contract?
The old law was that a contract reduced to writing and sealed was the best evidence of the truth of its recitals. Estoppel was essentially a matter of evidence, and solemnity of form was the controlling consideration. This is no longer true. 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, or, having been accepted and acted on in good faith, resulted in consequences which it would be inequitable and unjust to disturb. A fair statement of the original doctrine, and of the modern view which regards 'the substance of the transaction and the situation of the parties to it, is found in Caspersz on Estoppel, fourth edition, sections 336 and 339:
“Estoppel by deed, or, as it may better be described, estoppel by matter in writing, rested originally upon the idea that written evidence was of a higher and more conclusive nature than verbal. The truth could better be established where the parties had agreed to hind themselves by an act of solemnity, such as the affixing of a seal to a formal document. The form of the contract was of the first importance; formal contracts could alone give rise to actions, and informal contracts were only enforced upon the grounds of necessity and convenience.' Contracts under seal were, therefore, regarded as conclusive between the parties, the seal being a recognized and infallible method of proof.
“The tendency in modern times is to treat estoppel by deed as resting upon contract. So in Carpenter v. Butter [8 M. & W., 209, 212, (1841)], Baron Parks observed: ‘If a distinct statement of a particular fact is made in the recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true that, as between the parties to that instrument, it is not competent for the party bound to deny the recital; and a recital in an instrument not under seal may be such as to be conclusive to the same extent. . . . By his contract in the instrument itself, a party is assuredly bound and must fulfil it.’ And in this view estoppel by deed is nothing more than estoppel by representation, and is founded upon representations as to existing facts. In order to ascertain whether an estoppel arises, it is therefore necessary to look to the general effect of the instrument, and to see what the precise representation is, and whether it has been acted upon. What has to' be regarded is the substance of the transaction, and in particular the presence or absence of consideration.” (pp. 316, 318.)
In this instance it is plain the recitals respecting division of ownership were not made to the deceased son to induce him to sell what it was said he owned. The plaintiff did not plead that, relying on the recital respecting his ownership and possession, the deceased son so changed his situation that it would be unjust to return him to his former status, and the proof offered by the defendants precluded the possibility of an estoppel of this kind arising to confront them. Charles Stewart Moon had no land to sell or possession to give, could suffer no detriment in .respect to land he did not own or occupy-, and suffered no deprivation by failing to receive a gift prompted merely by maternal affection and generosity.
There remains the contract itself, considered as a contract, as ah estoppel. If purely voluntary on the part of the persons sought to be held, it lacks engaging quality. Unless there were adjustment, or compromise, or settlement of doubtful or conflicting or unsettled claims respecting title and possession, mutual concessions or promises, or giving on one side and receiving on the other — unless there were consideration— there was no binding obligation. As a matter of fact, properly interpreted, the contract is a concatenated instrument, the various portions of which are dependent on each other, and consequently subject as an entirety to the defense of want of consideration.
The defendants were not harmed by the action of the court in striding out parts of the answer. The portions stricken out consisted chiefly of recitals of evidential facts. The defendants were harmed, however,'when the court refused, to admit and consider proof of such facts. All, or substantially all, of them were relevant to the issue — gift or contract resting on valid consideration.
The judgment of the district court is reversed, and the cause is remanded for a new trial.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note for $10,000, given by the defendant, Mrs. M. L. Greene, whose liability was not contested. An attachment was levied on certain chattels as the property of the defendant. Dr. C. R. Hepler intervened, claiming the chattels under a bill of sale from the defendant. The question was whether or not the bill of sale was made to defraud creditors. The court sustained the bill of sale, and the plaintiff appeals.
Mrs. Greene incurred liability to the plaintiff to assist two sons, who were engaged in the banking business in Pueblo, Colo. To protect her they gave her title, or the means of procuring title, to various tracts of land in Colorado, New Mexico and Michigan. At that time the defendant owned a widow’s portion of a faym in Franklin county, Kansas, a one-half interest in some stock and implements on the farm, and a one-sixth interest in an estate in Illinois. The' sons failed, and a number of indictments were returned against them for violations of the federal banking laws. Some difficulty was experienced in procuring bonds and in procuring desired counsel. The mother came to the relief of her sons, and called to her assistance the interpleader, Dr. Hepler, who was her son-in-law. Dr. Hepler is a physician who formerly resided at Manhattan, and held a position in the state hospital at Osawatomie. He had gone to Colorado to look after a sick brother, and became connected with the management and disposition-of real estate in which the Greenes were interested. Two attorneys were employed to defend in the district court the criminal actions pending against the sons. The fees of the attorneys were $5,000 and $2,000, respectively, and they required $1,000 for expense money incident to the litigation. Mrs. Greene signed a note for $8,000 for these fees and expenses, and secured it by mortgage on the Franklin county farm. Doctor and Mrs! Hepler, at Mrs. Greene’s request, signed obligations to the attorneys for their fees. Mrs. Greene gave Dr. Hepler a bill of sale of her interest in the stock and implements on the farm, and she gave Mrs. Hepler an assignment of her interest in the Illinois estate. The consideration of the bill of sale and assignment was to reimburse Dr. Hepler for outlays of money in the,crisis in the Greene affairs, to protect Dr. and Mrs. Hepler on their obligations to pay attorney fees, and to help support Mrs, Greene until she should be able to take care of herself. Previous to this transaction Mrs. Greene had transferred to Dr. Hepler some ranch properties in Colorado, not shown by the evidence to be of any value above the mortgages on them. Through a trade of some of the lands received from her sons, Mrs'. Greene became the owner of an apartment house in Pueblo, Colo., known as Marlborough Terrace, which was subject to a first mortgage of $3,500. A note secured by a second mortgage for $6,000 on the property came into Mrs. Greene’s hands, which she transferred to the plaintiff as additional security for her obligation to the plaintiff. The transaction which included the mortgage to the attorneys, the bill of sale, and the assignment of the estate in Illinois, covered the time from January 27 to February 1, 1914. In September of the same year Mrs. Greene was adjudged bankrupt.
The district court made a general finding in favor of the interpleader. This finding includes, of course, findings on all the material issues. The plaintiff contends that the bill of sale was given with intent to defraud, that Mrs. Greene was insolvent at the time she made the bill of sale, and that the consideration for the bill of sale was of a character to render it fraudulent.
The finding of the district court that Mrs. Greene entertained no actual intention to hinder, delay or defraud her creditors, is approved. The conclusion to be drawn from the evidence is that the security which the sons gave Mrs. Greene when she executed for their benefit the $10,000 note sued on was chiefly, if not entirely, trading property of speculative value. There is no evidence that she possessed the necessary skill and ability to handle such property successfully. Marlborough Terrace was practically all she realized from' it, of any value. Concerning the tracts of land turned over to Dr. Hepler before the transaction of January 27, 1914, she said: “I am an old woman, and I wanted to get these things off my hands.” When her sons were indicted and incarcerated she undertook to do what any American mother would have done, and she was obliged to ask assistance. She said:
“I made the bill of sale to Dr. Hepler on the 27th day of January because he had signed obligations for me, and I was alone in the world and I had these cases of the boys to look after, my husband is dead, and I had no one when my boys were in trouble but Dr. Hepler and I appealed to him, and I had to compensate him in some way, and I gave him a bill of sale to compensate him for going on my obligations.
“Q. What obligations do you refer to? A. I refer to attorneys’ fees and expenses of this trial pending against my boys.”
Besides this, she said she had to live, and that Dr. Hepler could not go on her obligations and protect her without some compensation. The assignment of her interest in the estate in Illinois was made to her daughter on the same consideration. She believed the plaintiff was amply secured, and there is nothing to indicate that she had any intention whatever of wronging either of her other creditors, a bank in Ottawa and a Mr. Wilson, of Illinois. There is evidence that all parties to the transaction of January, 1914, believed Mrs. Greene was solvent. The plaintiff was the only creditor that had been preferred. Other creditors had not asked for security, and the plaintiff’s president had expressed satisfaction with his security when Mrs. Greene assigned the mortgage for $6,000 on Marlborough Terrace. The plaintiff does not strongly impute evil-mindedness to Mrs. Greene in coping with her difficulties, and the real question in the case is whether or not the bill of sale was fraudulent in law.-
The finding of the district court that Mrs. Greene was solvent when the bill of sale was made is approved.
Her assets were:
Franklin county farm (above mortgage)......... $5,530
Estate in Illinois............................... 3,000
Property covered by bill of sale.................. 1,368
Marlborough Terrace (above first mortgage)...... 6,000
$15,898
Her liabilities were:
To plaintiff....... $10,000
To Bank of Ottawa............. 1,880
To Mr. Wilson..... 1,000 12,880
$3,018
The court has little-time to discuss evidence, and little space in the Kansas reports for the publication of • discussions of evidence. It may be remarked, however, that the value assigned to the farm is derived from oral testimony on which presumably the district court relied. The value assigned to Marlborough Terrace is based on the testimony of Mrs. Greene, as to the character of the property, its location and surroundings, and its present state of repair and rental value; the testimony of B. J. Parker, who was agent for the property for eight years, during which time it produced a revenue of $100 per month, or twelve per cent per annum on $10,000; and the testimony of O. G. Smith, who examined the property for the purpose of making a loan on it about the time the bill of sale was given. The evidence on which the plaintiff lays great stress — the value-of the $6,000 mortgage — is of slight importance in the presence of evidence of the value of the real estate. Second mortgages on real estate and real estate itself are very different things on the market. The distinction, is made clear in the testimony of Smith. One of the plaintiff’s witnesses was so pessimistic that he testified there was hardly any market value of property in Pueblo. The plaintiff’s other witness, while testifying that the second mortgage of $6,000 had no particular value, said that the real estate had an actual cash market value of $7,000 — double the amount of the first mortgage. An analysis of the testimony of Parker, contained in the plaintiff’s reply brief, does not fairly represent him.
The finding of the district court that the bill of sale was not voluntary, but was based on a valuable consideration, is approved. Whether providently or improvidently, Mrs. Greene became obligated to the attorneys whom she employed, on a note and mortgage, and liability on this obligation cannot be gainsaid. While the assistance which she rendered her sons was voluntary, her obligation to the attorneys was not voluntary, because it was based on a valuable consideration, the adequacy of which is not in dispute. It is said, however, that the law will regard the note and mortgage as fraudulent, because not given for a present consideration. Cases are cited in which transfers of property made in consideration of the rendition of future services were condemned. It is not necessary to review them. In this instance the employment was not a general employment to render whatever legal services might be required, in whatever litigation might arise in the future, as in the case of Shellabarger v. Mottin, 47 Kan. 451, 454, 28 Pac. 199, or to render-such services as the client and his relatives might need within the next two years, as in the case of National Bank v. Croco, 46 Kan. 629, 26 Pac. 942. The employment was to defend specific criminal actions pending at the time in a specific court. The need for the employment was instant, and for all the purposes of the law the services were due at once. The employer was not insolvent. She was not prohibited from making new engagements, and the attorneys simply became Mr's. Greene’s creditors. They be-r came creditors of equal rank with the plaintiff, and could take and hold security for their claim, if given in good faith and not as a ruse to hinder, delay, or defraud other creditors.
The mortgage to the attorneys was not sufficient to secure payment of the note. Sureties were required. Dr. and Mrs. Hepler assumed $7,000 of the amount, and so became bound to the attorneys by an obligation, subject to no defense disclosed by this record. To compensate them the bill of sale and assignment were given. The consideration was a valuable one, which arose at the time of the transaction, and consequently the instruments were not voluntary, under any rational interpretation of the statute of frauds. (Gen. Stat. 1915, § 4885.)
In the case of Smith v. Rankin, 45 Kan. 176, 25 Pac. 586, a principal transferred property to his surety. The surety received the property not simply as indemnity, but as consideration for his promise, made at the time of the transfer, to pay the principal’s debt. The transfer was upheld when assailed as fraudulent by attaching creditors.
It is said the fact that the bill of sale was given in part for future advances rendered it a hindrance to creditors and a fraud on their rights. The evidence does not establish any definite sum of money which Dr. Hepler had advanced on Mrs. Greene’s account before the bill of sale was executed. Afterwards he said he advanced from $500 to $700. Treating the bill of sale as intended to cover future advances by way of expenses and by way of Mrs. Greene’s support, it was not necessarily fraudulent. Such a transaction is open to explanation, and if the purpose were not to cover up property with a pretended claim, in order to hinder, delay, or defraud creditors, it will be sustained to the extent that it was supported by an existing consideration. (Clement v. Hartzell, 57 Kan. 482, 46 Pac. 961; Farlin v. Sook, 30 Kan. 401, 1 Pac. 123.) The security was nob so excessive as to cast suspicion on the transaction. (Clement v. Hartzell, supra.)
There was testimony that the bill of sale and the assignment to Mrs. Hepler were to be considered as absolute transfers, and not merely as transfers by way of security. The fact is unimportant. For the plaintiff’s benefit, it may be conceded that under the circumstances the law will regard the transfers as for security only. The result is the same.'
It is not necessary to extend this opinion further. Absence of intent to defraud, solvency, and valuable consideration fairly adequate, are the determining facts of the case. The evidence sustains the finding of the district court with reference to these facts, and its judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
An oil and gas lease was executed by the owner of the land to A. W. Lucas. Lpcas assigned it to W. M. Roth-rock and C. B. Dickens. G. W. Goss and W. H. Aaron brought an action against Rothrock and Dickens, alleging and asking the court to adjudge that they were each the owners of a, one-sixth interest in the lease, the title to which had been by agreement taken by Lucas for the benefit of himself, the plaintiffs, and two other persons. Judgment was rendered in favor of Goss and against Aaron. The defendants appeal from the judgment against them, and Aaron appeals from the refusal to grant him relief.
1. The defendants claim that they are entitled to protection as innocent purchasers. There was evidence, however, that before they acquired the lease, and while the purchase was under consideration, Goss had told Rothrock that he and Aaron each owned a sixth interest in it. This was sufficient to warrant a finding, which the court must be deemed to have made, that the buyers had such notice of the fact that Lucas held the title as a trustee as to put them on inquiry, and prevent their obtaining higher rights than were held by their grantor. (28 A. & E. Encycl. of L., 2d ed., 1128; 39 Cyc. 374-376; 2 Perry on Trusts and Trustees, 6th ed., § 828, pp. 1364, 1365.). The question does not turn directly upon the interpretation of the statute requiring conveyances to be recorded, as was the case in Nordman v. Rau, 86 Kan. 19, 119 Pac. 351. The situation does not arise from the omission to record an existing instrument, but upon the holding of the legal title to property by one-person in trust for others. It is not necessary to the affirmance of the judgment that this court should be able to say that the facts shown constituted notice, but merely that there was room for a reasonable inference to that effect.
2. The contention is also made that a recovery is precluded by the section of the statute of frauds which prevents the enforcement of a contract for the sale of an interest in or concerning lands unless it is evidenced by a writing. (Gen. Stat. 1915, § 4889.) This is upon the theory that Lucas himself acquired the lease and agreed orally to sell an interest in it to Aaron and Goss. The evidence, however, was sufficient to justify the conclusion that the original transaction, as a result of which the lease was executed, was participated in by Aaron and Goss, and that the title was taken by Lucas for their benefit as well as for that of the other persons interested, although by agreement Lucas advanced the money to pay for it and drew upon the others for their respective shares, the drafts being paid. In that situation the statute referred to interposes no obstacle to the plaintiff’s claim.
3. It is further contended, however, that such a trust is rendered nonenforceable by the statute which forbids the creation of a trust concerning lands by parol. (Gen. Stat. 1915, § 11674.) The lease involved was an ordinary exploratory oil and gas lease, by which no title passed (Gas Co. v. Neosho County, 75 Kan. 335, 39 Pac. 750), and it may be doubted whether a trust in relation thereto is one concerning real estate. An oral trust with respect to a real-estate mortgage is held not to be forbidden by such a statute. (39 Cyc. 51, 52.) Assuming the rule to be otherwise with respect to such an instrument as that here involved, the right of the plaintiffs to recover is not affected, because implied or resulting trusts are excepted from the operation of the statute. There was evidence that Aaron and Goss each paid one-sixth of the consideration for the lease, the title to which was taken in Lucas, who by agreement and without fraudulent intent was to hold title for them to that extent. The law provides that where a conveyance is made to one person, the consideration being paid by another, no trust shall ordinarily result in favor of the latter. (Gen. Stat. 1915, § 11679.) But an exception is made, which applies in this case, “where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase-money or some part thereof.” (Gen. Stat. 1915, § 11681; Rayl v. Rayl, 58 Kan. 585, 50 Pac. 501.)
4. In behalf of Aaron it is argued that the findings of fact, which the court necessarily made in order to give judgment for Goss, also require a j udgment in his favor. But there was evidence that Aaron, with knowledge that Lucas 'had assigned the lease to the defendants and received payment in full therefor, elected to treat Lucas as indebted to him for his share of the proceeds, and thereby ratified the sale. This precluded his asserting title to the lease.
The judgment is affirmed.
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